The Lord Bishop of Exeter

Michael Laurence, Lord Bishop of Exeter—Was (in the usual manner) introduced between the Lord Bishop of Chester and the Lord Bishop of Southwell.

International Students: Visa Charges

Lord Hannay of Chiswick: asked Her Majesty's Government:
	Whether they will review the impact of the new charges for visas on the numbers of overseas university students coming to the United Kingdom.

Lord Triesman: My Lords, we are working closely with the education sector through the Joint Education Task Force on the whole range of visa issues, including fee levels. It is not currently possible to disaggregate any effect of the fee increase from other numerous and complex factors that influence an overseas student's decision on where to study.

Lord Hannay of Chiswick: My Lords, I thank the noble Lord for that not very satisfactory reply and declare an interest as pro-chancellor of the University of Birmingham. Does he recognise that it is unsatisfactory because no impact assessment was carried out before the visa increases were introduced and now he is saying that he cannot carry out an impact assessment afterwards? Is he aware that there has already been a drop of 21 per cent in student applications from China, of 15.4 per cent from Singapore and of 8.7 per cent from Hong Kong at a time when the US is reporting an increase of 15 per cent in visa approvals and France and Australia are also moving in that direction? Does he accept that there is a fundamental contradiction between the two policies the Government are pursuing, one of which is to increase the number of overseas students in our universities and the other of which is to claw back money when the visa costs go up?

Lord Triesman: My Lords, when this issue was last raised in your Lordships' House, I replied—and I believe other Ministers on other occasions have replied—that we are under a legal compulsion to recover the cost of the fees. An impact study was done on the cost of those fees—it was laid in the Library of the House—in order to demonstrate why the costs had gone up to the extent that they had. There are many factors, including the overall value of sterling compared with other currencies, the costs of living in this country and so on, all of which contribute. There is as important need to study the impact of all these factors. I have argued fiercely that we should do so.

Lord Tomlinson: My Lords, I declare an interest as a member of the Joint Education Task Force and as chairman of the Association of Independent Higher Education Providers. Does my noble friend agree that whatever changes are set out ultimately in relation to visas, the most important thing to get right is that educational institutions co-operate fully with the Home Office in making sure that education is not abused as a means of getting legal entry into the United Kingdom? Will he comment on the example of Australia given by the noble Lord, Lord Hannay, and whether there is any predisposition to look at the Australian system of online visa applications, which seems to be working so successfully there?

Lord Triesman: My Lords, one of the reasons why costs have increased is because the system's load of verifying whether an application is legitimate has itself gone up. In various studies of applications from different countries, the disturbing fact was found that a very significant proportion—in some cases it exceeded 60 per cent—of the documents provided alongside an application were forged. If we are to take seriously the issue of whether people get through our borders without our trying to do something about it in those circumstances, I afraid that there is a very real cost.
	The Australians have moved backwards and forwards in policy terms, but we will certainly look at what they do. Overall, we are seeing an increasing market in the movement of students around the world. The proportion of the market coming here may be decreasing, but until very recently the numbers had been rising sharply.

Lord Howarth of Newport: My Lords—

Lord Howe of Aberavon: My Lords—

Lord Rooker: My Lords, perhaps we may hear from the Conservative Benches.

Lord Howe of Aberavon: My Lords, granted that there has been a significant drop in the number of applications flowing from China, that China produces more students for this country than any other in the world—which is of enormous value academically, economically and politically—and, as the Minister conceded in his previous answer, that the visa regime is designed by no means primarily to deal with student inflow, but rather to safeguard homeland security, is it not wholly unreasonable to go on piling almost the entire cost of visas on student applicants rather than on the taxpayers of this country?

Lord Triesman: My Lords, the costs of the increases, which are related to security, have been applied to all categories of visa. When the visa fees issue arose in your Lordships' House, there were equal numbers of complaints about visa fees affecting the business community, those visiting their family, and many others—the complaints were distributed evenly.
	Although there has been a reduction in the number of Chinese nationals applying for visas, that drop has been seen in other countries, including Australia, Canada and New Zealand, whose authorities have reported a downturn in the number of student applications received by Chinese nationals.

Lord Wallace of Saltaire: My Lords, is the Minister aware that, according to a recent survey conducted by the London School of Economics, nearly 60 per cent of students accepted for PhD programmes were granted visas of two years or less, thus requiring them to spend more money renewing them before they had a chance to complete their course? Can he confirm that the Government now estimate that it costs three times as much to process student visa applications as it does to process the new proposed identity card, according to the figures that we have just been given?

Lord Triesman: My Lords, I have reflected on the fact that the impact study showed that the charge for visas for students was the amount needed to be recovered, no more and no less. I see no benefit in trying to judge whether that is good value in relation to identity cards or anything else. The processes are likely to be different. There have been a number of studies about whether students, including PhD students, are willing to come here. In my view it does not make sense to grant a visa for fewer than three years to any student coming to study for a PhD.

Lord Quirk: My Lords, may I turn to the Government's plans to abolish the right of appeal for visa applicants? Since it is recognised that decision-making is uncertain and in many cases rather bad, should not the Government at least wait until improvements have been introduced and tested?

Lord Triesman: My Lords, UKvisas acknowledges that there need to be improvements in entry clearance decisions. Enhancing training on decision-making by the ECOs and expanding ECM induction training are in hand. There is a role for education institutions in improving the quality of applications and using electronic methods for doing so, which makes a good deal of sense. That will finally be overtaken by the points system, which will deal with the issues comprehensively. We probably have the right measures in place until that process is fully implemented as the alternative.

Lord Bilston: My Lords, does my noble friend recognise that the negative impact mentioned with regard to universities is also very real in the further education sector? In 2002–03, 75,000 overseas students arrived here to take education courses, bringing in £58 million. Since then, in the current year, there has been a 10 per cent to 20 per cent reduction in the number of students, which is obviously having a profound effect on the operation of many further education colleges.

Lord Triesman: My Lords, I would expect that the implications would spread to further education, not only to higher education. However, I ask your Lordships to consider the basic fact that if this increase had not taken place, students would be asked to pay an average for a course that would still be 99.94 per cent of what they are being asked for now. It is hard to imagine that that is the decisive factor; rather, it is the overall cost of studying in this country.

Electricity Generation

Lord Jenkin of Roding: asked Her Majesty's Government:
	What plans they have for the construction of power transmission lines from remote offshore wind farms.

Lord Sainsbury of Turville: My Lords, the DTI and Ofgem are currently consulting on the high-level regulatory options for connecting offshore energy renewable energy projects to the onshore electricity transmission network. The consultation was launched on 27 July and closes on 19 October. It is intended that the Minister should announce a decision on the chosen options before the end of the year.

Lord Jenkin of Roding: My Lords, does the Minister recollect that, back in June when I asked him about offshore transmission, he confessed that,
	"there is obviously the question of where the costs fall".—[Official Report, 13/6/05; col. 1065.]?
	Is he also aware that, in the consultation paper to which he has just referred, the DTI had to admit that,
	"there remains some uncertainty about the economics of offshore electricity transmission and generation"?
	The Government's aim is to have 6,000 megawatts of offshore power installed by the year 2010, but, in the light of the DTI's admission, what are they going to do to give that target some reality?

Lord Sainsbury of Turville: My Lords, what I said on the previous occasion was entirely correct. There is a question of where the costs fall, because it depends on the regulatory system that is put in place regarding those costs. As for the timing, the general view is that if this decision is made by the end of the year, as I pointed out in the Answer, that will in no way hold up the decisions of the developers getting on with the offshore wind farms.

Lord Redesdale: My Lords, will a large subsidy go to the nuclear industry if there is a new nuclear build? If that is the case, could not the Minister bring forward regulations to finance offshore lines that could run down the east and west coasts of the country to link major developments off the coast of Scotland? That would be a renewable form of energy with long-term implications. The problem at the moment is that 6 gigawatts are being planned but there is no switching gear able to deliver that energy from the north to the south.

Lord Sainsbury of Turville: My Lords, the situation on the transmission lines in Scotland is that applications have been put in to the Scottish Executive by the relevant transmission owners, which are Scottish and Southern Energy and Scottish Power. The Executive will have to take a decision on those applications and consider the alternative—an offshore cable, which would be of much higher cost.

Lord Marsh: My Lords, does the Minister agree that the Government's priority now is nuclear and that windmills are an expensive diversion?

Lord Sainsbury of Turville: My Lords, as the noble Lord well knows, there is to be an energy review that will no doubt take account of his view, and that of many others, that nuclear is the answer as opposed to wind. I do not think these are alternatives. Almost any sensible strategy would say that a mix of energy sources is the right one, and the question to be considered is whether nuclear should be one of those.

Lord Judd: My Lords, does my noble friend accept that there are those who question this assumption that underwater cables would be a much more expensive option, and who argue that there are schemes operating elsewhere in the world that have shown that they are an economically sound proposition? Will the Government look again carefully, not just at our own calculations, but at what is actually happening elsewhere in the world?

Lord Sainsbury of Turville: My Lords, there was a DTI study of that very question. It suggested that it is more expensive by a factor of 10 to use underwater cables. If it were to be an important issue in a planning inquiry, those figures would be scrutinised carefully and compared with others to see whether they were correct.

Lord Lewis of Newnham: My Lords, do I gather from what the Minister said that he does not anticipate any change in the timescale for the production of the offshore wind farms? Is there to be any change in the costing for onshore and offshore electricity as a result of these problems?

Lord Sainsbury of Turville: My Lords, as I said, I would not think that there would be any delay as a result of the decisions that have to be made. As far as the economics are concerned, three different systems have been suggested for bearing the costs of the transmission. The decision on which of those is picked will, to some extent, affect where those costs fall, as between the overall onshore system and the developers of the wind farms.

Lord Higgins: My Lords, will the noble Lord give an assurance that there is no question of constructing such transmission power lines anywhere other than on or below the sea bed, as otherwise they might present a danger to navigation?

Lord Sainsbury of Turville: My Lords, I know that the noble Lord has got a Question down on that very point—or, at least, a related point. I do not know whether the cables would be on the sea bed. If I may, I shall write to the noble Lord with an answer on that.

Lord Winston: My Lords, does my noble friend agree that there is considerable public disquiet—albeit that it may be irrational, as many scientists like myself believe—about non-ionising radiation? What are the Government doing about siting future power lines so as to cause the minimum disquiet among the public, where it may arise?

Lord Sainsbury of Turville: My Lords, that is an extremely interesting question, but I do not think that it relates to this issue. These lines would be on the sea bed. I do not think that that would present many problems for anyone, other than the fish.

Lord Greenway: My Lords—

Lord Rooker: My Lords, we must move on.

House of Lords: Sitting Days

Lord Berkeley: asked the Leader of the House:
	Whether it is now the case that the House of Lords sits only on days when the House of Commons is sitting.

Baroness Amos: My Lords, the sittings of this House are subject to the progress and requirements of our business. This House and the other place tend to sit on similar days to help the passage of Bills and Messages between the two Houses.

Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. What is the tradition or precedent for adjourning the House after a tribute to a former Prime Minister who has died? In July, when Sir Edward Heath died, we lost a day's business, including a Bill that I was promoting. I was interested to see that sometimes we adjourn the House and sometimes we do not. It does not seem to matter much whether the Prime Minister dies when we are sitting or when we are in recess. I would be grateful if my noble friend could consider whether a good set of tributes is sufficient for a former Prime Minister, allowing us then to get on with business.

Baroness Amos: My Lords, there are in fact no formal rules; the issue is decided following consultations between the parties. In the past 30 years, only one former Prime Minister has died on a day on which the House was sitting. The House was not sitting on the five other days in the past 30 years when a former Prime Minister passed away, so the decisions were made on the basis of each one. There was one case in which a former Prime Minister died in the Recess and the House adjourned, but there was only a four-day gap between the death and the return of the House.

Lord Renton: My Lords, I thank the noble Baroness the Leader of the House for her cautious reply. Having been a Member of your Lordships' House for 26 years and of another place for 34 years before that—60 years continuously—I point out to your Lordships that there have been many variations but that, most frequently, the House of Commons, when it rises in July, nearly always leaves a certain amount of legislation for your Lordships to consider.
	It is better that your Lordships should deal with that as soon as possible and well before the House of Commons reassembles.

Baroness Amos: My Lords, the noble Lord's experience of both Houses is, of course, unparalleled. With respect to the July and September—I assume that the noble Lord is referring to September—sittings, noble Lords will know that we did not sit in September this year but that we have sat in September in the past four years. No decision has yet been made about future years because we need to look at the business requirements of this House. It would be only right for us to consult with colleagues in another place.

Lord McNally: My Lords, does the Leader of the House agree that it is as important where Parliament sits as when it sits? Did she read the report in yesterday's Sunday Times that there are contingency plans to decamp to somewhere in Hampshire? Perhaps I may hazard that I am expressing the mood at least of this House that a Parliament that sat through a world war and direct attack would be extremely reluctant to leave the Palace of Westminster and would prefer to continue amid the rubble rather than to give in to terrorist attack.

Baroness Amos: My Lords, the noble Lord, Lord McNally, is quite right. Members of this House and another place would be extremely loath to meet anywhere else. Having said that, it would not be helpful for us not to have contingency plans in place. But the existence of contingency plans, I hope, does not mean that we necessarily need to use them.

Lord Strathclyde: My Lords, we on this side of the House are entirely content with the arrangements that currently exist for adjourning the House after the death of a Prime Minister. We commend the usual channels arrangements that have withstood the test of time. However, on Recesses more generally, is the noble Baroness aware that, excluding Fridays, over the years 1997–2003, this House sat on more than 50 days more than the other place in order to accommodate the deeper scrutiny that your Lordships conduct of government business? Yet, in the past two years, our sitting days have been almost identical. Is there therefore a new convention that both Houses should sit at the same time?

Baroness Amos: My Lords, there is no such new convention. However, noble Lords will know that my noble friend the Government Chief Whip has made it clear to the House that, wherever possible, we will seek to match Recess dates, for example, in another place. That has resulted in this House having a February break which started off as a long weekend and has now become one week. In the 2003–04 Session, the Lords and the Commons sat on identical dates, but in all of the other years we have sat on a different number of days. So there is no new convention. However, it would be right to say that we are trying to match the Recess dates in another place, which is, of course, of benefit to your Lordships.

Olympic Games 2012: Opening Ceremony

Lord Redesdale: asked Her Majesty's Government:
	What is their policy on the performance of traditional singing and dancing, such as morris dancing, at the opening ceremony of the Olympic Games in 2012.

Lord Davies of Oldham: My Lords, plans for the content of the opening and closing ceremonies of the Olympic and Paralympic Games in 2012 have yet to be developed. However, I can assure the noble Lord that, in keeping with our approach to the games as a whole, we will wish to ensure that this reflects both the rich cultural heritage and contemporary diversity of our nation.

Lord Redesdale: My Lords, I thank the Minister for that reply. It is also fitting that morris men, who were the only group that the Government ensured were exempt from the Licensing Bill in 2003, and their like should be represented at the Olympics opening ceremony. Does the Minister know that there are 14,000 morris men and women around the country who are an integral part of this country's heritage? Indeed, it would be a slap in the face if the Government did not recognise their place, because 600 morris men got together in November 2003 to dance in praise of the Government for their efforts in making morris men exempt from the Licensing Bill.

Lord Davies of Oldham: My Lords, that tribute to the Government did not go unnoticed. Of course we expect that dance will form an important part of the opening and closing ceremonies. We have, after all, the example of the extraordinary way in which dance was employed by the Greeks at the Athens Olympics to create a wonderful opening ceremony, so we have at least one precedent. The noble Lord will recognise that as regards traditional dance, in addition to the morris men other parts of the United Kingdom, including the Scots, for example, have traditional dancing that everyone recognises is of high cultural value.

The Lord Bishop of Chester: My Lords, the Question also referred to traditional singing. Would it be a tribute to the cultural diversity of this country if the crowd were to sing "Abide with Me" before one of the occasions; or, if we wanted something more attuned to the Olympic Games, "Fight the Good Fight", which would at least refer to the boxing, which contains the verse,
	"Run the straight race through God's good grace"?

Lord Davies of Oldham: My Lords, I am grateful for that additional suggestion for the plans for the opening ceremony of the Olympic Games. I do not think that the tunes have been chosen yet and this proposal could be taken on board. The right reverend Prelate will recognise that at least one of his suggestions—namely, "Abide with Me"—was associated with one unique event in the British calendar. I associate it with and would hope that it would always be sung at the Football Association cup final and not on other occasions.

Baroness Billingham: My Lords, could I express a little concern about the Question? Like every other Member in the House I have received an invitation, first, to join the Parliamentary Choir; and secondly, to join tap-dancing classes. I have to ask—this is of great concern—is there some plan afoot to ensure that Members of this House are in some way to be coerced into the opening spectacular of the Olympic Games in 2012?

Lord Davies of Oldham: My Lords, I can reassure my noble friend that all that has happened is a long-overdue recognition of her outstanding talents.

Lord Redesdale: My Lords, I thank the Minister for his helpful and positive reply. I hope that he will accept a delegation of the Squires of the Ring, Open Morris and the Morris Federation to discuss future plans that they can then take forward to present to the noble Lord, Lord Coe, who unfortunately is not in his place today.

Lord Davies of Oldham: My Lords, I shall welcome that occasion and try to ensure that my fellow ministerial colleagues are also present.

Business

Lord Grocott: My Lords, with permission we shall have a Statement repeated today on preparations by the Department of Health in the event of an influenza pandemic. We shall take that Statement after the Second Reading debate on the Regulation of Financial Services (Land Transactions) Bill. It will be repeated by my noble friend Lord Warner.

Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order 2005

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos).

On Question, Motion agreed to.

Equality Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the amendments for the Report stage be marshalled and considered in the following order:
	Clauses 1 and 2 Schedule 1 Clauses 3 to 33 Schedule 2 Clauses 34 to 42 Schedule 3 Clauses 43 to 90 Schedule 4 Clauses 91 to 94.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Regulation of Financial Services (Land Transactions) Bill

Lord McKenzie of Luton: My Lords, I beg to move that this Bill be now read a second time. The aim of the Bill is to bring home reversion plans and Ijara financing arrangements into statutory regulation by the FSA. Noble Lords will be aware that the FSA assumed responsibility for the regulation of first charge mortgages secured on a purchaser's primary residence from 31 October 2004. The decision to regulate in this area was announced in December 2001 and was broadly welcomed by both industry and consumer groups.
	Buying a home reversion plan is a huge financial decision involving the most important and sometimes only significant asset of elderly people. It can have significant implications for tax, benefits, inheritance and long-term financial planning, which need to be considered very carefully. Regulation is not designed to discourage people from purchasing these products, but to help them make informed choices, offer valuable consumer protection and ensure that there is a level playing field in the equity release market, most of which already falls within the scope of FSA mortgage regulation. Furthermore, and equally important, these provisions will ensure that Muslim consumers are able to access the growing market in Sharia-compliant home finance products while benefiting from the protections afforded by FSA regulation.
	The Bill has been introduced not only to meet the needs of consumers, but also at the behest of industry, which has welcomed the news that legislation is being brought forward to level the regulatory playing field in this area. Noble Lords may find it useful if I take a moment to clarity what home reversion plans actually do. In short they are a form of equity release scheme—financial products that allow homeowners to release the value of their property above any amount owed on a mortgage. In a home reversion plan, homeowners sell all or part of their house at a discounted rate in return for a lump sum and/or income and continue to live in the house rent-free or for a peppercorn rent for life. The amount paid to the homeowner is based on a number of factors, including the value of the property, the proportion of the property sold; life expectancy of the owner(s), long-term interest rates; and expected house-price inflation. However, these are not simple products to understand, hence the need to ensure that potential purchasers receive an appropriate level of advice.
	These plans are not currently regulated by the FSA and the Bill paves the way for this to happen. A home reversion plan should be distinguished from lifetime mortgage, another equity release scheme. In a mortgage-based scheme the householder retains ownership of the property, whereas in reversion plans the reversion provider becomes the owner of whatever proportion of the property is sold. For lifetime mortgages, homeowners take out a loan secured on their property, but with the interest on that loan becoming payable when the house is finally sold, typically on death or when the owners move into long-term care. These products are currently regulated by the FSA.
	The other products that this legislation is designed to bring within the scope of regulation are Ijara home finance products. As I am sure noble Lords are aware, interest charging loans do not comply with Sharia law. However, Islamic law can accommodate some types of contracts to facilitate house purchase, so alternative products have been developed. There are two main types of Islamic-compliant home finance products in the UK at the moment. The first is Murabaha, where a financial institution purchases the chosen property and then sells it immediately to the individual at a higher price. The higher price is then paid back on a monthly basis over a period of, say, 15 years. The repayment is secured by a first legal charge over the property and therefore these products are already covered by FSA regulation.
	The second type of Islamic-compliant product is Ijara, where a financial institution purchases the chosen property and the individual agrees to pay back the exact purchase price either over a period of up to, say, 25 years or at the end of the payment term. Ownership of the property remains with the financial institution until the payment term is up and the individual also pays rent to the financial institution over the payment term. The individual becomes the owner of the property once the purchase price paid by the financial institution is repaid. This is an arrangement not currently covered by FSA regulation.
	In addition, I should note at this point that the Bill will allow flexible tenure products to be brought into the scope of regulation if that becomes necessary in the future. By "flexible tenure", I mean an arrangement that would allow a homeowner to increase or decrease their equity stake in the property by transferring interest within the property to and from a financial provider. This allows homeowners to increase their ownership when personal finances are stable and to decrease ownership in the unfortunate event of financial difficulty.
	At present, the only providers of these products would in any event be exempted from FSA regulation, as they are registered social landlords or local authorities. However, in response to consultation, we have undertaken to keep the door open for regulation of these products if commercial providers enter this market in future. Any action to introduce regulation in this area would be subject to rigorous cost benefit analysis and would require secondary legislation.
	As I indicated, neither home reversion plans, nor Ijara home finance products are currently regulated, because activities relating to these products are not specified as regulated activities pursuant to the Financial Services and Markets Act 2000. The fact that activities relating to reversion plans are not currently specified as regulated activities does not mean that there is not still scope for abuse. Indeed, given that some of these products, by their very nature, are aimed at the elderly, one might argue that some consumers of these products are particularly vulnerable. Not only is there a risk of mis-selling, but at present there is a lack of redress if things go wrong.
	I would not wish to paint an unduly worrying picture, however. Consumers of home reversion plans are not completely without protection at the moment. The home reversion market is subject to voluntary regulation through Safe Home Income Plans arrangements. Members of SHIP agree to comply with a code of practice and undertake to provide fair, simple and complete presentation of any plan that they offer. They also offer a guarantee that consumers will never owe a lender more than the value of their home—a 'no negative equity guarantee'.
	However, these protections fall short of the sort of protections offered by statutory regulation and the FSA's regime. The sort of rules that one would expect to see the FSA apply to home reversion schemes under the powers granted by this Bill would include: rules to ensure that providers must advise of risks as well as benefits when advertising reversion schemes; rules on advice to consumers which would ensure advisers considered implications for tax and benefits, as well as matching the consumer's overall needs and circumstances to product features; and a requirement for firms to issue key product information to consumers in a clear and understandable format. Furthermore, FSA regulation will offer consumers access to the Financial Ombudsman Service in the event that they wish to make a complaint, and it would also provide cover under the Financial Services Compensation Scheme.
	Industry has been a keen proponent of regulation for reversion plans precisely in order to remove any consumer confusion and to boost consumer confidence in the equity release market as a whole. The market in home reversion products, though growing at 13 per cent in the first quarter of 2005, remains small at less than 3 per cent of the total value of lending in the equity release market. FSA regulation is seen by many industry participants as a prerequisite of further expansion of this market. By boosting consumer confidence it will ensure that potential demand is realised and by securing the reputational risk of reversion providers it will encourage more players to enter the market.
	There is a very similar story to tell in the Islamic home finance market. Here, a nascent market is developing to serve the needs of Muslim house buyers and to avoid distorting this market as it develops and ensure the same level of consumer protections across the board. Islamic home finance providers also welcome the prospect of regulation that this Bill holds out.
	Having set out clearly the benefits of extending FSA regulation in the way that this Bill proposes, I should stress that we have arrived at a balanced view of the overall benefit of regulation following extensive consultation. In line with the Government's general commitment to better regulation, we have sought to ensure that the changes proposed by this Bill both are necessary and the costs justified.
	A consultation document seeking views about whether home reversion plans should be regulated was published in November 2003. Following points raised by respondents to the initial consultation which demonstrated strong support for the regulation, a further document was published in summer 2004 asking for views on whether Ijara products should be included within the scope of regulation. Again, the vast majority of responses agreed that Ijara products should be regulated
	The second consultation exercise also confirmed that flexible-tenure products, which allow people to buy and sell equity shares in their houses, should be brought within the scope of regulation. However, as at present the only providers of these products are currently outside FSA regulation, this will not be taken forward at this stage. The estimate of costs associated with the proposed regulation is set out in the RAA. Obviously, the precise nature of the regime will not be clear until the FSA has consulted on detailed rules and produced a detailed cost benefit analysis.
	The Bill is extremely short and simple, with only two clauses. The background to the Bill is that in order for an activity to be FSA regulated, it must be carried on by way of business and specified in an order made under Section 22 of the Financial Services and Markets Act 2000. Schedule 2 to that Act sets out in broad terms the kinds of activities and investments that can be specified in an order made under Section 22. Although it includes loans secured on land for standard mortgages, it does not cover other kinds of finance provided in connection with the acquisition or disposal of land. The Bill amends Schedule 2 of the FSMA to make it clear that financial arrangements in connection with the acquisition or disposal of land can be specified in the order under Section 22 of the Act.
	If the House sees fits to support this measure and the Bill is passed, secondary legislation would be brought before the House in the form of an affirmative resolution statutory instrument, which would define precisely the activities that would actually be regulated in future by the FSA. The content of that secondary legislation will be consulted on publicly to ensure that it is properly targeted and effectively focused. The FSA would also need to draw up and consult on the detailed rules that would apply to the activities relating to these products going forward. There is no reason to believe that any future regulation of home reversion plans and Ijara products would be very different from that already in place for lifetime mortgages or other products. However, it is important to note that the FSA is obliged to take account of the particular features of each activity that it regulates and to ensure that the rules it applies are proportionate to the risk posed.
	I hope that I have gone some way to convince noble Lords of the considerable merits of the Bill. It will open the door to important consumer protections to be extended to vulnerable and minority consumers, level the playing field in mortgage regulation, ensure that no artificial distortions go forward, bolster consumer confidence in those products and thus help to ensure that the markets continue to develop. The Bill has found strong support among consumer groups and industry alike, was widely supported in the other place, and I hope that it will garner support from all noble Lords today.
	Moved, That the Bill be now read a second time.—(Lord McKenzie of Luton.)

Lord Newby: My Lords, we on these Benches welcome the Bill. It is an example of how the remit of the FSA needs to evolve and expand to deal with new financial products as they evolve and expand. At the end of my speech I shall suggest that it might be expanded a little further. The Bill is also a rare example, in my experience, of the felicitous drafting of a mere couple of clauses killing two fairly disparate birds with one stone, and the parliamentary draftsmen are to be congratulated on that.
	The Bill covers two different kinds of product, the first of which is home reversion plans. As the Minister has pointed out, as people live longer and, as he has not pointed out but is the case, normal pension provisions are found to be increasingly inadequate, the demand for home reversion plans is bound to grow. In 2004 new plans amounted to £1.2 billion and new lifetime mortgages to £4 billion. Although only one of those two products is being covered today, they are broadly in the same field. Yet household wealth net of mortgages amounts to approximately £2 trillion. Therefore, there is a great deal of scope for the development of this market in the years ahead.
	Despite the impressive SHIP scheme, the history of this sector is that there has been cause for concern about mis-selling. One of the reasons is that these products are typically sold to the elderly, who, although they can be extremely astute on financial matters, in some cases, as with the not so elderly, are easily bamboozled by the way in which financial advisers attempt to sell products.
	That has been borne out by the mystery shopping that the FSA did in this area when it found that about 60 per cent of the financial advisers whom it contacted failed to explain the risk involved in the products when attempting to sell them.
	Secondly, there has been scope for mis-selling as regards the valuation of a property, particularly at times of market volatility. Thirdly, there has been scope for mis-selling as regards the fees that have been charged for valuing properties and legal fees. Therefore, there is a series of good reasons why these plans should be covered by the regulation.
	The second area covered by the Bill concerns Islamic home finance products, which is a relatively new market. However, I understand that it is growing extremely rapidly by about 70 per cent per annum. It is estimated that it could be worth some £1.6 billion within the next three or four years. As the noble Lord pointed out, the principal products within that market are the Murabaha product and the Ijara product and, I understand, the splendidly named Diminishing Musharaka product. I am extremely grateful to officials in the Treasury who produced an excellent briefing note. Before that I was completely ignorant of those products. Treasury officials produced a very clear note and briefed me personally, for which I am grateful. At a time when we are all looking for ways to encourage the Muslim community to feel that they have a stake in British society, the ability to gain greater access to housing finance on a basis which complies with their religious beliefs is doubly welcome.
	While I welcome the Bill, I have a question and a proposal. My question relates to cost. In another place my honourable friend Vince Cable pointed out that on the Treasury figures the cost per company which becomes regulated under the Bill will be £475,000 in the first instance. That seems to me a very high figure. I have had recent discussions with the FSA about compliance costs. I was impressed by the steps that it is taking to reduce the length of the rule book and reduce compliance costs where it can. It is not always helped by the industry. Sometimes when the FSA goes out to consultation, the industry is not very good at coming forward with specific areas of compliance which it wishes to be rid of. Therefore, the FSA does not necessarily get the positive response that it wishes. However, will the Treasury look again at those figures and satisfy itself absolutely that a compliance regime at that cost is strictly necessary?
	My proposal is that the Bill should be extended to cover property investment clubs. Property investment clubs through which investors typically purchase flats off plan—that is, before they are built—now account for up to half of all new flats purchased in the UK. Typically they offer investors the prospect of large capital gains, not least by claiming that they are selling the flats at a discount. There are, however, a number of serious pitfalls for the unwary investor. As with all financial services products, there is no shortage of unwary investors.
	First, the so-called "discounts" are often found in reality not to exist. One can imagine that in a property market where prices are falling that could be an increasing problem. Secondly, very large fees are often charged by the clubs for alleged training and advice which is merely passing on information that any investor could obtain by reading the financial pages, or possibly looking up the FSA website. Thirdly, the risks of purchasing the properties are often understated. At present there is no protection against mis-selling in this area. The FSA has recognised that there is a problem and has issued a discussion document in which it suggests that those PICs which do not exercise day-to-day control over the management of a property should be classified as collective investment schemes. Those which exercise such control would remain unregulated. That appears to be an unsatisfactory distinction. It excludes from regulation many PICs which simply should be covered.
	The FSA argues that to include all PICs would require primary legislation. However, such legislation—a mere few clauses—could be justifiably and logically added to this Bill and, in doing so, an area of current mis-selling cleaned up. I understand that the Council of Mortgage Lenders would support such a move. I therefore invite the Minister to use this opportunity to agree to amend the Bill accordingly.

Baroness Noakes: My Lords, I thank the Minister for introducing this short but significant Bill. We on these Benches support the Bill. We have long been of the view that it was anomalous for the FSA to be able to regulate mortgage-based equity release schemes, but not home reversion plans. While we are generally suspicious of increased regulation, we are content that it is appropriate for home reversions to be subjected to the same regulatory regime as lifetime mortgages.
	The lack of regulation of home reversion plans creates an undesirable incentive for providers to sell them. The safe home income plan trade body has mitigated some of the risks of unregulated home income plans, but nobody could seriously argue against the proper regulation of the whole of the equity withdrawal market on a consistent basis.
	I do, however, have some issues for the Minister to address. The first is timing. We have been waiting a long time for the Government to act in relation to home reversion plans. The issue is not a new one. The Government's consultation on the regulation of home reversions was eventually published in November 2003, and the Government announced in May 2004 that legislation would be brought forward. But it then took over a year before the Bill we are considering today was introduced into another place. The Bill before us is, of course, not the end of the story, because the Government still need to bring forward secondary legislation under the Financial Services and Markets Act 2000 to define precisely what is to be covered.
	The Government finished their consultation on that a year ago but, as I understand it, they have not yet issued a draft of the statutory instrument which will actually give effect to the Bill. Even when this Bill is an Act, and the Government have implemented it by way of statutory instrument, the FSA will then have to draft and consult upon the detailed rules.
	This is a simple Bill. If the Government had been so minded, they could have implemented it by now. The only conclusion that can reasonably be drawn is that the Government are rather half-hearted about the issues. Will the Minister explain two things? First, why has it taken so long for the Government to get to where we are today? Secondly—and more importantly, given where we are—how long will it take for the combination of the Government and the FSA to complete the job? In other words, when will home reversions actually be within the FSA's regulatory scope on a fully implemented basis?
	I have already said that we are content for the extension of regulations implicit in this Bill. That does not mean that we have no concerns about the additional regulation, particularly the costs—a subject already raised by the noble Lord, Lord Newby. The Explanatory Notes say that the costs associated with ongoing regulation of home reversions will be £5.4 million, and that there will be one-off costs of £11 million. That is not an insignificant amount, especially in the context of the amount spent by the FSA on mortgage and general insurance regulation in the past financial year, which amounted to £27 million. The costs could be even higher than those set out in the regulatory impact assessment once the FSA has drawn up the detailed rules to implement the regulation.
	The financial services industry has general concerns about the cost of the FSA and the regulatory burdens that it imposes. The Government rejected in another place an amendment proposed by my honourable friend Mr Mark Field, which would have increased Parliament's scrutiny of the final regulatory impact. The Minister in another place said that the existing processes to hold the FSA to account were sufficient, but we are far from convinced of that, and we have some sympathy with the view of the Prime Minister about the FSA's over-regulation. Are the Government content with the FSA's approach to regulation in general? Will the Treasury take any specific interest in the way that this Bill is implemented in terms of the regulatory burdens imposed? Or will they just ignore the issue once enactment has been got out of the way?
	We welcome the regulation of the equity release market, first by putting lifetime mortgages under the FSA and now by including home reversions. The regulation of the equity release market was necessary because of problems that occurred in the past. Indeed, even today consumers are vulnerable if they enter into a home reversion scheme before this Bill is enacted and fully implemented. I have already raised concerns about timing. The Minister will be aware of the instances where home income or shared appreciation mortgage products were sold in the 1980s and 1990s to individuals whose circumstances made those products unsuitable and who were not made aware of the risks. I am sure that he will also be aware of the many cases of genuine hardship that have resulted. We are not only talking about the role of financial advisers and mis-selling in this case; we are talking about some major institutions, including building societies, which actively marketed those products.
	I know that the easy answer is that only the regulatory regime then in existence is relevant to those hard cases, and I can see a great temptation for the Government to hide behind that legalistic approach. I believe that the Government are hiding behind that legalistic approach. I have seen one recent letter in which the Economic Secretary said that the Government,
	"hope that all lenders will continue to take as generous and sympathetic an approach to residual debt as possible".
	Does the Minister agree that that is a weak response? What have the Government specifically done to put pressure on the lenders who are still failing to give relief to the victims of those earlier schemes?
	The Minister will know that the power of government goes beyond the power to legislate. They have enormous powers of persuasion or even of coercion. Will the Minister commit the Government to using all their de facto powers to achieve relief for those locked into those early schemes? If he will not do so, will he please explain in detail for the record, and for the benefit of all those who are desperate for the Government to help them, why they take that approach?
	I have concentrated in this speech on home reversion schemes. The Minister also explained that the Government intend to use the Bill to bring Ijara mortgages within the scope of the FSA's regulation. I state for the record that on these Benches we welcome that. It makes good common sense that all transactions that are in substance lending should be regulated in the same way. Regulation should not be delineated by artificial legal boundaries.
	In that light, I note that the Minister said that the Government do not intend to use the Bill to bring flexible tenure products within the scope of the FSA. The rationale, as I understand it, is that those products are provided only by local authorities or registered social landlords at present. I have two questions for the Minister arising from that. First, what remedies are available in respect of local authority or registered social landlord flexible tenure schemes at present? Are those remedies at least as strong as those available for borrowing regulated by the FSA? I have in mind in particular the role of the financial services ombudsman and the financial services compensation scheme. Is there anything equivalent for flexible tenure arrangements at present, and if not why not?
	My second question relates to the issue of timing, which is similar to the question I raised earlier. It has taken a long time to get to where we have on equity withdrawal regulation. What procedures will the Government put in place to ensure that they can act swiftly if any other financial schemes related to people's homes need to be brought explicitly within the regulatory net? For example, if some form of flexible tenure scheme were devised and sold by a commercial company, would the Government act immediately to bring them within the FSA, or would they wait for more financial loss and more human misery to accumulate before acting? I look forward to the Minister's reply to the questions I have put to him and also to the remaining stages of this Bill.

Lord McKenzie of Luton: My Lords, I thank the noble Baroness, Lady Noakes, and the noble Lord, Lord Newby, for participating in this debate today and for the support which each has given to the Bill. A number of questions have been raised and I will try and deal with those first.
	The noble Lord, Lord Newby, referred to the mystery shopping exercise with regard to lifetime mortgages. He was right in identifying that there was not compliance. It underlines the point that having regulation is all very well, but it is important to make sure that that regulation is effective and implemented. The Diminishing Musharaka is a subsect of Ijara and therefore is potentially within the scope of the provisions that we are dealing with.
	The noble Lord, Lord Newby, and the noble Baroness, Lady Noakes, both raised the issue of costs of regulation. At this stage these are inevitably an estimate of the proceedings but those estimates were based upon experience in looking at regulation for mortgages. Clearly, in due course, when the FSA has looked at its detailed rules and done its detailed cost and benefit analysis, those costs will change. The noble Baroness suggested that they might increase. Well, they might also decrease and they are the best estimate that is currently available and must be seen in the context of the benefits that will ensue from that regulation. But the Government will keep the issue under review and look forward with interest to what comes out of the FSA in due course.
	On the issue of property investment clubs, we understand the concerns that have been raised, as the noble Lord, Lord Newby, identified. He is right to say that the Government have recently put out information about trying to clarify what, in their view, is a collective investment activity and that which is not, and therefore that which is already regulated by the FSA and that which is not. There are concerns and the Government remain to be convinced that for the generality of the buy-to-let market there is the need for regulation. The product is different and by definition we are not dealing with people's primary residences and—depending on the nature of the products—they are not necessarily financial products. They clearly need to be kept under review and I imagine that we will return to this at later stages of the Bill. The Government's response is that they do not currently see the need to regulate in this area.
	The noble Baroness, Lady Noakes, talked about timing and asked why has it taken so long and what is the timing going forward? There is inevitably some lead time to the introduction of regulation. If we are going to get it right and if it is going to be based on consultation then that process does take some time—perhaps longer than we would all wish. In terms of moving forward, it is hoped that the secondary legislation and the FSA could be dealt with in a timescale that would mean regulation will commence in the first quarter of 2007—just over a year from now. There are still two further processes to be gone through, each of which involves consultation.
	The noble Baroness raised the issue of home income plans and what had happened on them. She is right that it was a sorry tale of a product that was not properly and fully regulated at the time, and vulnerable people have suffered considerable hardship. The position is as in the letter to which she referred; namely, that a lot of lenders—most lenders, fortunately—have offered a package of measures to home-income plan investors in respect of their residual debt. The Government hope that those that have not will move towards taking a similar line.

Baroness Noakes: My Lords, I am sorry to press the Minister on this point, but he will understand that there is considerable interest among a small number of people who have nevertheless suffered considerable hardship. Will he say something about what the Government continue to do in discussion with the organisations that sold the products, from which one might hope for some redress?

Lord McKenzie of Luton: My Lords, the Government are pressing those involved in lending. At the moment, I cannot give the noble Baroness a detailed, point-by-point explanation of what is happening—who is pressing whom and through what forum—but I will be happy to follow up on it and make sure that she has that information. It is impossible always to deal with things retrospectively. There was not proper regulation, which is a market failure and a failure of the process and regulation at that time. Those are the risks into which people entered at that time. Nevertheless, the Government remain sympathetic to those people whose financial circumstances, as a result of mis-selling, are pretty dire. I am sure that we will continue to do what we can within our remit to press people to try to ease the burden. I shall write to the noble Baroness in some detail about what is happening more precisely in that regard.
	Flexible tenure products were raised. The amendment to the FSMA will allow for secondary legislation to be brought forward to regulate them in due course. Therefore, if products emerge that require regulation, there is scope for going through only the latter two stages and not primary legislation to have them implemented. Again, the more experience we have on regulation in the area, the shorter we hope the lead time will be to get in any additional regulation under those provisions implemented. It would be the Government's intention to act if it were required.
	Parity in respect of those who have provision via local authorities or social landlords was mentioned. The remedy would be the housing ombudsman. The noble Baroness pressed me about the detail of what that might mean in comparison with what would be available to an alternative regime. I shall have to write to set that out, as I do not have the detail on that. I hope that she will accept that as an appropriate follow-up.
	I hope that I have dealt with all the points raised. I thank noble Lords again for their support for the measure. We now wish to press ahead and implement it as quickly as we can.
	On Question, Bill read a second time, and committed to a Grand Committee.

Avian Flu

Lord Warner: My Lords, with permission, I wish to repeat a Statement on Department of Health preparations for an influenza pandemic made by my right honourable friend the Secretary of State in the other place. The Statement is as follows:
	"Mr Speaker, the Government take the risk of an influenza pandemic very seriously indeed. Since 1997, we have had a plan for a flu pandemic, and because of increasing risk globally and increasing awareness we have substantially revised the plan. An updated version was issued in March this year, which outlines the actions that the Government and other authorities are taking. We are working across all government departments and sectors. We are currently revising the plan to take into account comments received, and an updated version will be published on Thursday this week.
	"As the Chief Medical Officer has stated:
	'Most experts believe that it is not a question of whether there will be another severe influenza pandemic, but when'.
	We take this threat very seriously. The Government have been taking increasing action over the past 12 months to prepare for a pandemic.
	"We are fortunate in having some of the best scientific and medical experts in the world leading our work on pandemic preparations. The World Health Organisation believes the UK to be one of the best prepared countries in the world. But we will continue to step up our planning and take proportionate actions, based on the best available evidence, to reduce the impact of a pandemic in the UK.
	"It is not possible to predict with confidence when the next influenza pandemic may happen. The H5N1 virus currently circulating in poultry in south-east Asia, and now other regions including Turkey, is presenting a huge challenge for animal health. My right honourable friend the Secretary of State for Environment, Food and Rural Affairs is taking appropriate steps to reduce the risk of avian flu spreading to birds here. H5N1 has also caused about 60 deaths in humans to date. This virus, however, has so far affected only people directly working with infected birds. It is not readily transmitted from person to person, which is, of course, the key characteristic of a pandemic virus. In May 2005, the WHO stated that this virus,
	'poses a continuing and potentially growing pandemic threat'.
	"A human influenza pandemic could have serious implications for the UK. As the Chief Medical Officer explained publicly yesterday, a flu pandemic could affect around 25 per cent of the UK population. We estimate that there could be at least 50,000 deaths as a result of the pandemic, compared with around 12,000 flu-related deaths each year, and it could be significantly more.
	"The NHS is well used to planning for and responding to emergencies, but every country in the world will face enormous pressures in the event of a flu pandemic. In order to help the NHS, we have published operational guidance to help with contingency planning for a human flu pandemic. We are also funding a number of exercises that test NHS plans locally and those of other stakeholders.
	"We are backing up our contingency plans with practical action. Antivirals will provide the first form of defence against pandemic influenza. We have ordered more than 14.6 million treatment courses of oseltamivir—Tamiflu—to treat people who may fall ill. This month we shall have 2.5 million treatment courses. By the end of March we shall have nearly 7.3 million courses, and the full stockpile will be complete by September 2006. We have issued guidance to inform local NHS planning for the distribution and storage of those medicines.
	"The other medical intervention that we are actively pursuing is vaccination. Vaccine will offer the best form of protection against pandemic influenza. However, a vaccine cannot be manufactured until the exact flu strain is known, and it will take around four to six months until first stocks of a vaccine will be available. We are working closely with manufacturers, other countries, the World Health Organisation and the European Commission to ensure that a vaccine can be developed as quickly as possible once a pandemic influenza strain emerges. That will allow us to put arrangements in place to ensure production of vaccine for the UK population.
	"We have ordered 2.3 million doses of an H5N1 vaccine as a precautionary measure. We expect delivery of this early next year.
	"One of the cornerstones of preparedness for pandemic flu is research. The Medical Research Council is actively involved in pandemic flu research. Its chief executive is going to south-east Asia in the next few days to see what the MRC can most usefully contribute. The department is working closely with the Health Protection Agency to have in place a research strategy on vaccines and surveillance.
	"Clinical management guidelines are being developed with the Health Protection Agency (HPA) and the British Thoracic Society to help inform management of patients suffering from pandemic flu. We are working with the HPA to finalise infection control guidelines that will provide valuable advice on how to reduce the risk of spread of the virus.
	"Good communication with the public and health professionals will be crucial both before and during a pandemic. We have seen recently that some of the messages in the media about avian flu, pandemic flu and seasonal flu can be confusing. We want to try to ensure that the public is provided with clear and factually accurate information about pandemic flu and its possible consequences. We have already carried out extensive testing with the public on communication materials to be used in the event of a pandemic. During the summer, the Chief Medical Officer alerted all doctors to the guidance and advice on the Department of Health and Health Protection Agency websites. This month we will send packs of information, including that already available on the website, to all primary care professionals, including GPs.
	"We are also taking a leading role in international discussions on avian and pandemic influenza. In the UK's role in the EU presidency, I have made this a major item for our discussions at the EU Health Ministers informal meeting later this week.
	"There is widespread public concern about pandemic influenza. We need accurate information and the media have an important role to play here. There is no direct threat to members of the public in the UK from current outbreaks of avian flu elsewhere in the world; this is a bird disease. There is no reason to stop eating chicken. Nevertheless, it is very important for protection against seasonal flu that people aged over 65 and other at-risk groups recommended to have vaccination should make sure that they receive their vaccinations as normal".
	My Lords, that concludes the Statement.

Earl Howe: My Lords, I am grateful to the Minister for repeating the Statement. It is a Statement which I welcome as providing a good opportunity for the Government to lay out the extent of UK preparedness for a possible pandemic of avian influenza.
	The Minister will not share the perception held on this side of the House, but from where we sit, the actions that the Government are now taking, although welcome in themselves, appear insufficient in comparison to the scale of the threat and could certainly have been got off the ground sooner. This is not the luxury of hindsight. The signals of a possible pandemic have been around for months, and the UK was a long way behind other countries in drawing up national contingency plans and in putting in orders for anti-virals. However, we are where we are.
	The Statement leaves open a number of questions. In particular, what is the Government's strategy for the use of antivirals? Are they seen as being prophylactic, to enable health professionals to have a degree of protection during an outbreak of avian flu, or are they seen as being primarily for treatment? There is a very significant difference between the two in terms of the quantities of these drugs which would be needed for each purpose. Are general practitioners aware of what the intention is in this regard, because the poll carried out by doctors.net.uk this week made it clear that 77 per cent of GPs felt that they had not been fully informed about avian flu? I wonder whether the information packs to which the Minister referred will make it clear whether antivirals are intended as prophylaxis or treatment. Indeed, have the Government got beyond the rather uncertain form of words in the influenza plan, which state,
	"more work is being done on the most effective strategies for the use of antiviral drugs"?
	Why is it that the quantity of antivirals now on order is far, far lower than the comparable quantities in other EU countries, and on the actual types of antivirals, why is it that the NHS is stockpiling Tamiflu and not also Relenza, which other countries have favoured and which could be of use if the initial avian flu virus were to mutate?
	On the question of vaccines, how long will it take for the 2 to 3 million doses of H5N1 to arrive? Taking a step back from that issue, on what basis has the figure of 2 to 3 million been reached? Does not this figure stand in sharp contrast to the figure of 40 million doses ordered by the government of France? Is the Minister able to offer any insight as to why this difference exists? What manufacturing capacity is needed in order to increase the UK vaccine supply to considerably higher levels were that decision to be taken? What is being done to achieve this expansion in capacity? What progress has been made in agreeing advance purchase orders with vaccine manufacturers? On the technology of vaccine manufacture, what is being done to encourage the use of reverse genetics, which has the potential to cut very considerably the delay in manufacture?
	Turning to other supply issues, I ask the Minister about supplies of gloves, needles and face masks. What orders have been placed for these items in anticipation of a possible avian flu outbreak, bearing in mind that France has placed an order for 600 million face masks?
	The plan prepared by the Government presupposes that a pandemic strain will originate in China or the Far East and that the incubation period of the virus will be between one and three days. What if these assumptions are wrong? As we know, avian flu in birds has appeared in Turkey and Romania. In addition, the upper limit of an incubation period can be as long as eight to 17 days. If the epicentre of a pandemic were not after all the Far East, the UK might not have the time cushion that we would otherwise have in order to prepare for an outbreak. This could apply even more seriously if the incubation period turned out to be longer than forecast, because infected people could travel around the world before their symptoms appeared. Why does the Government's plan not reflect the consequences of these not-impossible models?
	Finally, perhaps I may ask the Minister about critical care services. What is the current estimate of the shortfall in critical care beds on the basis of current assumptions about the incidence of an avian flu outbreak? Has the Minister read the study published in the journal Anaesthesia criticising the flu plan for failing to consider the impact of a pandemic on critical care services and saying that in the worst case the UK would be short of some 6,000 beds?
	I realise that I have asked a lot of questions; and, in so far as the Minister is not able to answer any of them now, I should be grateful if he would write to me.

Baroness Barker: My Lords, I, too, thank the Minister for repeating the Statement. This issue has reoccurred throughout the summer. The news of the past few days about the incidence of flu in Romania has once again led to misleading newspaper headlines. On this side of the House, we feel very strongly that the provision of accurate information is essential to any strategy to inform the public and enable them to take steps to safeguard their own health. My intention today is to seek that information and I hope, in so doing, to allay rather than to augment fears in the general public.
	I was very struck by one article in a newspaper I read a few weeks ago. I understand that some research has been carried out which has modeled all the great flu epidemics since 1918–19. What lessons have the Minister's department taken from that particular piece of research?
	I, too, want to concentrate on drugs. What plans have the department made to stockpile drugs other than oseltamivir—for instance, zanamivir—in case a new strain of influenza develops resistance to oseltamivir used on its own. I heard the Chief Medical Officer yesterday talking about the limitations on preparing new vaccines until new strains become apparent, but it seems short-sighted not be to trying at this stage to diversify the range of drugs which are available.
	The Minister referred to relationships working across government and across government departments. What is the relationship with Defra? What are the appropriate steps, which the Minister mentioned, that Defra is taking to assist with the strategy? Also, is the Department of Health working with its colleagues in the Foreign and Commonwealth Office to give accurate information to people travelling abroad?
	The noble Earl, Lord Howe, referred to the Government's repeated assertion that available drugs will be given to specific groups of people. I have read the UK's strategic framework on the issue and agree with the identification of the groups of people listed in the appendix. It includes, for example, people who have chronic obstructive pulmonary disease, and older people, whose immune systems are compromised. However, the Minister will know that, on the general strategy for flu vaccination, I have long said that it is a limited approach simply to target the individuals listed and not those who work with them; for example, people who work in residential homes or those who care for older people or those with long-term respiratory conditions. Will they also be prioritised in the framework?
	What plans do the Government have to update legislation covering public health and infectious diseases? If we do not have a strategy, we are likely to be assailed by different conditions. Furthermore, what negotiations are taking place with Roche to speed up the manufacture of Tamiflu? For example, are other companies being asked to help with manufacturing, without Roche losing intellectual property rights over the drug?
	The Minister referred to the EU Health Ministers' meeting later this week. Last week an internal European Commission report highlighted the tensions within the EU between western countries which had already ordered Tamiflu and poorer accession states which would now have difficulty in buying it even if they wanted to. We believe that it is short-sighted to adopt an "I'm all right Jack" attitude. What will the Government do to work with other countries to ensure that there is an international response in stocking the correct medicines?
	The Minister also referred to the work that PCTs and strategic health authorities have been instructed to do. They have been charged with setting out their own strategy for local implementation. Does he agree with me that the proposed reorganisation of both those bodies is likely to have a severe impact on their capacity to deliver any such strategy within a very short period?
	I also wish to ask, yet again, what planning the Department of Health has carried out to ensure that there are sufficient isolation units throughout the country, in case they become necessary.

Lord Warner: My Lords, there have been a lot of questions. I will try to answer as many of them as I can, and I will write to the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, with those points where I fail the exam paper—or, more accurately, where I do not attempt the exam paper.
	I do not agree with the noble Earl, Lord Howe, that the department has been laggardly. We have carried out active planning in this area, led by people more expert than most of us in this Chamber.
	Both the noble Earl and the noble Baroness asked about antiviral drugs. My understanding is that Tamiflu would be administered after a doctor had made a diagnosis. That is the working assumption on which most work has been taken forward, but such matters are always kept under review.
	In terms of readiness, I am advised that the main distinction between us and, for example, France, is that it has Tamiflu in powder rather than capsule form. The reasons that it has many more dosages is that it does not have it in such an easily-administered form as in the UK. The officials who have had many meetings at the World Health Organisation on this issue suggest that the UK and Australia are the countries most advanced in planning in this area, and that the issue of whether we should use Relenza as well also comes down in part to the issue of the ease of taking it. Relenza is, if I may put it this way, taken through the nose, and is not a capsule, which is the easiest way of taking the vaccine. This poses great difficulties if you are trying to protect children.
	I hope the answers I have given reassure noble Lords that a good deal of expert thought has been given to these issues. To illustrate the preparedness of this country, the United States is way behind, and has nothing like the antiviral provision being made by this country in relation to the population. We have to be careful before we indulge in the great British disease of slagging off ourselves about our preparedness.
	The noble Earl raised the question of reverse genetics. I am not in a position to answer that, but I can write to him about it. There have been discussions with vaccine manufacturers on the best way forward in this area, and these will continue. On some of the other detailed questions he asked me—about critical care beds, supplies of gloves and needles and so on—I will have to write to him. I say to him that we are trying to have an organic contingency plan for an emergency. We are not saying it is fixed for all time. We are keeping this area under strict review, and, as we get more information and new advice and assimilate it, we will adapt the plan accordingly.
	The noble Baroness, Lady Barker, raised a number of questions regarding lessons to be learnt from earlier epidemics. I gently remind her, and I think the Chief Medical Officer said this, that those epidemics were in other times. Antivirals were not available, global movement was not the same, and we have much more knowledge about both the extent of our ability to combat epidemics and an honest understanding of the limitations on what we can do. To combat a strain of flu, we know we would need to take four to six months to produce a vaccine that was effective for that particular strain. That is why we are stockpiling antivirals, to mitigate the effects of a pandemic while that vaccine can be manufactured.
	Regarding combinations of antivirals, we have taken our position on Tamiflu on the basis of the best medical and scientific advice we have at the moment, but no doubt the Chief Medical Officer and his colleagues will keep under review the scope for using combinations of antivirals, and if there is anything more I can report on that I will write to the noble Baroness.
	The relationship with Defra is close, as always, and there is a good working relationship in this area. We are in contact with the FCO on travel advisories, and my understanding is that the advice being given out, especially with regard to south-east Asia, is for visitors not to go into rural areas where there may be exposure to avian flu.
	We offer healthcare and social care staff the opportunity to be priority groups in the case of an epidemic, and we believe that the work with Roche is the right way forward. From my experience in my previous job, I know that setting up manufacturing plants for the required quality for this product is not easy or quick, and we have a manufacturer equipped to provide the necessary volume and quality.
	We have been working closely with other countries through the World Health Organisation and the European Commission. It is not a question of us "pulling up the ladder, Jack"; it is in all our interests to work together, to share information, to have good information about outbreaks and to make sure that we can take appropriate action on travel, when the need arises.
	I am sure that the noble Baroness will not be surprised to hear that I do not think that the consultation that is in progress on reshaping PCTs and strategic health authorities will in any way jeopardise the implementation, should it be necessary, of our plans relating to a flu pandemic.

Lord Clinton-Davis: My Lords, does my noble friend agree that it is not helpful for certain experts to cultivate a wide disparity of views regarding the possible consequences of pandemic avian influenza, as is happening at the moment? He spoke about the action being taken by the WHO, the EU and other organisations. Would he expand on that? Although it is sensible to prepare for the worst, there should also be a rational belief that this will not have the immensely grave consequences that some experts envisage.

Lord Warner: My Lords, we live in a democracy, and there is nothing to stop anyone expressing their views on anything on which they wish to express views. However, as a Government, we expect people—including the media—to try to exercise judgment and discretion in the way in which they cover the story, so that we do not cause unnecessary public concern. We realise that it is a difficult issue, and we listen to experts in all areas. The Chief Medical Officer and his staff, the Health Protection Agency and others are co-ordinating that. We recognise that there will be a slight difference of view among experts about what is a sensible judgment of the risks. We have struck a cautious balance in the work that we have done to plan for a pandemic.
	I have been to one meeting of EU Health Ministers in this area. There has been regular work in the EU on the exchanging of information. The Commission has made a lot of information available to countries to make sure that they keep a close eye on the matter and make preparations for things that may happen. One has to pay tribute to the WHO for the work that it has done to bring countries together and to make sure that we get a flow of information from countries in which avian flu, in particular, has broken out. We are, I think, getting improved, speedier data from south-east Asia as a result of those efforts.

Lord Turnberg: My Lords, I want to ask two brief questions, but, before I do so, I commend the Government for the care and attention that they have given to the planning process. In particular, I commend the Chief Medical Officer for trying to spread the message of what it is all about to the public.
	My first question relates to funding for the Health Protection Agency. The Health Protection Agency plays a major role in all of this preparation. Can we be reassured that its funding is sufficient for it to fulfil its roles adequately?
	The other question relates to the use of the antiviral agents. I am sure that my noble friend is aware that many in the front line in the field are beginning to take individual action, stockpiling a small supply of antivirals for their own use and keeping them handy. Can he reassure us that there will be sufficient antivirals available in a timely way to prevent people being panicked into trying to stockpile such material?

Lord Warner: My Lords, I am grateful to my noble friend, as I am sure the Chief Medical Officer will be, for his kind remarks. I, too, share those views. In a difficult area, Department of Health and HPA staff have worked very closely to construct and to give out public messages which are accurate, are not phonily reassuring and are not exciting people unnecessarily. I think that I can reassure the noble Lord as regards HPA funding. We will of course keep an eye on the work of the HPA in order that, should the situation change, it is adequately resourced for the important work that it does.
	As regards antiviral agents and stockpiling by resourceful NHS staff, which, as I understand it, is the drift of the question, I do not think that they have access to our stockpile. It is tucked away and will be used in accordance with the emergency plan. If people are making their own arrangements to access antivirals, that is of course a matter for them. But this material has to be used within a certain date, so we will be maintaining that approach in relation to our stockpile. We will need to ensure that it is kept up to date.

Lord Walton of Detchant: My Lords, I have one comment and two questions. First, I mentioned briefly in the House last week that the American group of scientists who reconstructed the virus responsible for the pandemic episode of Spanish flu after the First World War has found that that virus shows certain structural characteristics similar to those present in this HM1N virus that is causing avian flu, which is a disturbing find. Secondly, can the Minister confirm that in the Far East the only human cases of avian flu have been in people who have had direct contact with birds carrying the virus and that there is as yet no evidence of human-to-human transmission? Is that correct?
	Thirdly, if and when the virus in birds comes closer to the United Kingdom, what arrangements are being made to advise the public on how to handle and perhaps look at dead birds that may conceivably be carrying that virus? What advice is being given to the public at large on that question?

Lord Warner: My Lords, I became briefly aware of the point that the noble Lord, in his very learned way, made about the possible connection between the virus in the 1918 flu pandemic and the current virus strain in relation to avian flu. I do not know enough about that subject to do other than say that I am aware of the point that has been made. I will find out more about it and will write to the noble Lord.
	As regards cases of avian flu jumping from birds to humans, and then from humans to humans, as I recall there have been about 60 deaths in south-east Asia from cases of avian flu and many more cases of infection. As far as I am aware, in all of those cases the person infected has been closely connected with poultry in some way. The only known death in Europe of which I am aware is a vet in Holland who was actively involved with poultry. I am unaware of any cases where the infection has moved from human to human. We are aware only of cases where it has moved from poultry to human.

Lord Soulsby of Swaffham Prior: My Lords, I return to antiviral substances. The Minister will be aware that antimicrobial resistance may develop against antiviral substances by viruses. If that occurs with Tamiflu the duration of its usefulness in an outbreak may be limited to a few months rather than on a continuous basis. Should that occur, what are the Government's plans and strategy to handle that should there be evidence that a resistance is developing to antiviral substances?

Lord Warner: My Lords, I am aware of the risk relating to antimicrobial resistance that the noble Lord suggests. I cannot answer that question, but I will take advice and write to him.

The Countess of Mar: My Lords, will the Minister say what action Defra is taking to trace all the small poultry producers—I am thinking of people with two or three hens in their gardens, or perhaps a couple of geese—who are not registered with Defra as poultry producers but who may need to know what to look out for if their poultry become infected? The public can be generally reassured that the major producers are all aware of what to look out for, how to protect their birds and what action they should take, but the smaller producers are more difficult to trace. Will he also say what the Food Standards Agency and Defra together are doing to reassure the public, especially with Christmas coming up, that not only chicken but goose and turkey are safe to eat?

Lord Warner: My Lords, all I can do is to take away the points and talk to my colleagues in Defra and the Food Standards Agency and write what I hope will be a reassuring letter to the noble Countess.

Lord Colwyn: My Lords, will the Minister confirm that the worry about avian flu is in no way changing the amounts of vaccine that we would normally have in store at this time of year for routine flu that we would expect in the winter? I was under the impression that the dangers of avian flu were to patients who already might have contracted routine flu and could get avian flu on top of it.

Lord Warner: My Lords, the noble Lord is right. We will be working through in the normal way the vaccination programme for the priority groups for the seasonal influenza outbreaks that there usually are in the British winter. They tend to originate from south-east Asia—as does the current year's strain. He is right that the concerns related to avian flu moving through a human population are about the inter-relationship between avian flu and other influenza strains that may produce a potent mix that spreads quickly. I can do nothing other than commend his science on that issue.

Baroness Masham of Ilton: My Lords, is the Minister aware that there is concern that some PCTs in London have been cutting the services of district nurses? Will he ensure that there will be enough district nurses to look after people in their homes should a pandemic occur? Will there be adequate supplies of oxygen for those people who have breathing problems? As he knows, breathing problems and asthma are on the increase and that would be a serious problem. Is the Minister aware that a Question on avian flu was asked in the House last Thursday and that the answer from Defra to a question from me about dead birds was that there was a lot of information on the website? There is, because I looked it up.

Lord Warner: My Lords, I am grateful to the noble Baroness for enabling me to answer one of the questions of the noble Lord, Lord Walton of Detchant. I refer him to the Defra website. The noble Baroness asked about district nurses and PCT services. She is aware that we do not micromanage the NHS from Richmond House. It is down to PCTs to make appropriate arrangements for meeting the health needs of their populations. I do not believe everything that I read in the press or the professional journals about what PCTs are or are not doing in individual cases. I am sure that they will be operating in accordance with our emergency plans in relation to a pandemic.

Merchant Shipping (Pollution) Bill [HL]

Report received.

Lord Hanningfield: moved Amendment No. 1:
	After Clause 1, insert the following new clause—
	"UNITED KINGDOM: DUTY TO PROMOTE THE SUPPLEMENTARY FUND PROTOCOL
	The United Kingdom shall unilaterally, and in partnership with organisations including the International Maritime Organisation and others as it sees fit, take all reasonable steps to promote the merits of the Supplementary Fund Protocol and to encourage other states to ratify the Protocol as soon as practical."

Lord Hanningfield: My Lords, in moving this amendment I hope to create an opportunity to raise a number of points regarding the Bill which Members on these Benches wish to see clarified. I should explain that, having taken advice from the Government Whips and the Public Bill Office, I have been informed that without laying an amendment I would be unable to raise any substantive issue about the actual content of the Bill. I have therefore utilised the prerogative of the Opposition because it is our duty to ensure that any legislation put before us is scrutinised to its fullest extent. On that last point I make no apology. I say that because in Committee I was criticised by the noble Lord, Lord Clinton-Davis, for seeking clarification on a series of points at that stage. I hope that he will not criticise me today. Like the noble Lord, Members on these Benches fully support the objectives of this short but highly important Bill. But I believe that the opportunity to probe a little further cannot simply be forfeited.
	I thank the noble Baroness, Lady Crawley, for her exemplary conduct and the approach she has adopted towards this Bill, and for the kind assistance she has extended to me and to other Members of the Committee. It is to the letter written by the noble Baroness to Members of the Committee on 5 August last that I wish to address my remarks today. Again, I thank her very much indeed for the informative content of that letter. It went a long way towards addressing many of our original questions. However, I would be grateful for a little further comment on a number of related points
	First, the noble Baroness has explained in commendable detail the terms of the review of the existing international regime and of the conventions which pose a threat to the effectiveness of the current operating structures. That is a practical and sensible move, and one that we all support. Can the Minister give us an update of where we are with the suggested reforms as detailed in her excellent letter and whether there was any movement over the summer in finalising those arrangements? Are we any closer to clarifying with our international partners the definition of a "ship", or to what would constitute a viable quorum? In particular, it would be helpful to learn more about the time-frame within which we may expect these reforms to be signed off and put into practice.
	Secondly, concerns persist as to how other countries will be encouraged to sign up to the fund, the point addressed in the amendment. I understand that some states may choose not to join, but it is important that we make every effort to promote the benefits of membership. Indeed, the Minister mentioned that we will continue to promote the supplementary fund. My question about this is simple: how?
	We have heard that, as a signatory, the UK will send a strong message to others. However, in essence I am looking for something slightly more substantive, although of course not for a moment do I doubt the Government's intentions on this matter. I hope that real thought can be given to this point in the department and that perhaps an action plan outlining the ways in which the UK will actually seek to encourage other states to sign up could be produced. Simply to say that the UK will be adequately covered and protected because our near neighbours are parties to the regime is slightly to shirk from our international obligation to ensure that all nations, wherever they are, are adequately protected. So if the noble Baroness can provide an assurance that serious thought will be given to our role in encouraging other states to sign up, I think that we would be happy to let the matter rest.
	I will not detain the House any longer lest I incur the wrath of the noble Lord, Lord Clinton-Davis, except to say that as I have mentioned before, we are happy to support the legislation. I hope that the noble Baroness will be able to provide us with the assurances we seek today. I beg to move.

Lord Clinton-Davis: My Lords, I am very sorry that I purported to incur the wrath of the noble Lord, Lord Hanningfield. I had no intention whatever of upsetting him. If I have done, I apologise profusely.
	The noble Lord explained that it was imperative that he should put an amendment down—however irrelevant—if he had the opportunity, to explain his disappointment in certain respects. Frankly, I do not think that he should have apologised at all. He could, of course, have referred to the situation at Third Reading. It was unnecessary to table an amendment. However, he has done so. I believe that the amendment is otiose, because the situation described in the amendment is already happening. I am sure that the Government recognise that the position will change in the future as we benefit from experiences that will occur that cannot be envisaged at the moment.
	In other words, the Bill introduced by the Government should not represent the last word. We should be prepared—as I am sure they are—to learn from situations that emerge in the future. As I said before, in no way do I want to upset the noble Lord, Lord Hanningfield. I am sure that the whole House will endorse the view that the Government are showing the way. The international order can be properly represented on the world stage as far as this aspect of policy is concerned. I am sure that that is the view of the noble Lord and of the Government.

Lord Bradshaw: My Lords, I have a very brief question for the Minister to include in her answer. How will the adherence to this protocol be policed? How do we know that the ships that visit our harbours are covered by the insurance provisions of MARPOL? Otherwise, I am perfectly happy to allow the Bill to progress.

Baroness Crawley: My Lords, I thank the noble Lords for their contributions this afternoon. Before I begin the substantive part of my remarks, I should like to make a small tribute to Lord Donaldson of Lymington who passed away during the recess. He was a familiar figure in the shipping world and in this House. As a wise and often trenchant adviser to governments and to their officials, he was closely engaged with the proposals before us today—proposals likely to make the seas cleaner. Indeed, much of our current law in this field is based on his important work. As my honourable friend the Minister of State for Transport wrote to Lord Donaldson's family:
	"We are much in his debt".
	I am sure that the House would concur with that.

Noble Lords: Hear, hear!

Lord Clinton-Davis: My Lords, Lord Donaldson was a personal friend of mine. I endorse fully what my noble friend said and I am sure that that is the view throughout the whole House. In his absence, we mourn a man who contributed greatly to the safety of shipping and those who sail in the ships that they serve.

Lord Hanningfield: My Lords, the opposition echoes those comments and I add my condolences to those that the Minister and the noble Lord have expressed.

Baroness Crawley: My Lords, I thank noble Lords for those comments.
	The points raised by the noble Lord, Lord Hanningfield, in his amendment are most timely. This week the state parties to the International Oil Pollution Compensation (IOPC) Fund are meeting to discuss the review of the regime. The current review of the international oil pollution compensation regime began in 2001. The supplementary fund protocol, referred to in the Bill, was born out of the early stages of that review. A number of other issues are still under consideration. We expect a decision by the assembly of the IOPC Fund later this week with regard to whether or not the underlying treaties are to be revised. If there is agreement to revise the regime, the purposes would include addressing the balance of financial responsibility between the shipowner and the oil receiver and amending a number of technical issues in the interpretation of the fund that have arisen over the years.
	It is expected that there would then be a series of meetings to consider the detail of the reforms, including the definition of "ship" and what constitutes a viable quorum, as rightly noted by the noble Lord. It would also be necessary to agree a draft text of the treaty. Agreement of a revised international treaty can be a long process and even in this case, with a limited number of issues for revision, can be expected to take at least a couple of years. Any draft instrument would then need to be adopted by the diplomatic conference of the International Maritime Organisation. If there is agreement this week to revise the regime, an optimistic estimate would be three to four years to agree new instruments.
	This is not the first review of the international oil compensation regime and I do not expect it to be the last. As noble Lords will know, the regime has been around for more than 25 years and we hope that it will continue for many more. In order to continue with full vigour, the regime needs to evolve. From time to time amendments will inevitably be required in the light of experience. Therefore, Clause 1(2)(b) of the Bill makes provision for the UK to ratify future instruments governing liability and compensation for oil pollution, if they are adopted following a review of the regime. Of course, such further changes would be subject to the affirmative resolution procedure, as we have provided for in Clause 1(6)(a). I hope that that information assists the noble Lord and the House.
	I now turn to address the second point raised by the noble Lord, Lord Hanningfield. The Government agree that the UK should use its best endeavours to encourage other states to join the supplementary fund protocol. I am happy to repeat today that the Government's intention is to ratify the supplementary fund protocol as soon as possible after the Bill receives Royal Assent, if that is the will of Parliament. Once the UK has ratified the supplementary fund protocol, we will be in a better position to encourage other states to join, and that is our intention. Until we have ratified and brought the protocol into force, it is difficult to bring pressure to bear on other states to do the same. Should the House agree, and should the other place go through its procedure, ratification could take place by the end of February and the bringing into force of the protocol by May of next year, at which point we could look other states in the eye and ask them what point they have reached as regards ratification.
	The Government are a strong supporter of the international oil pollution compensation regime and believe that wide participation in the Supplementary Fund Protocol will both strengthen the regime and ensure its continued international status. Broad international membership of the supplementary fund will also benefit our oil industry as contributions for compensation in the event of a major oil spill will be spread across a greater number of oil receivers.
	I assure noble Lords that the Government fully intend to take opportunities, on the back of UK ratification, to encourage other states to join the Supplementary Fund Protocol, as the noble Lord encourages us to do. However, the Government believe that it would be more appropriate to do so through bilateral meetings and discussion at the International Maritime Organisation rather than by pre-published action plans.
	We intend to remind our European colleagues that we are all required by a European Council decision of March 2004 to ratify the Supplementary Fund Protocol as soon as possible. We will urge member states to fulfil their obligations under that decision.
	We will also work very closely with our Austrian colleagues, who will take the chair of the European Union in January. We will work with them particularly closely on maritime issues. We will use that close working relationship to remind our European Union colleagues of the obligations that they are under. We will be able to check also on the progress of our international colleagues beyond the European Union family with other IOPC states at the meeting that they will hold next spring, on the assumption, of course, that we ourselves have ratified at that stage.
	I hope that the action we are taking is enough to reassure the noble Lord and that he will agree that it is not necessary to include his amendment in primary legislation.

Lord Clinton-Davis: My Lords, I am much obliged to the noble Baroness for giving way. Would it not be a good idea if whoever is responsible for the matter wrote to the IMO on this important issue to enable that body to respond? All Members of this House who want to attend meetings of the assembly should be able to do so. Having had responsibility for this matter in the past, I realise that very few people are aware of what the IMO does. The organisation is located not very far from here.

Baroness Crawley: My Lords, I am sure that we shall have opportunities to take up my noble friend's point regarding promoting the work of the assembly and making it clearer to noble Lords who have an interest in such policy areas. Certainly, we shall look into that matter. With those comments I hope that the noble Lord, Lord Hanningfield, will feel able to withdraw the amendment.
	The noble Lord, Lord Bradshaw, asked how adherence to the protocol would be policed. I understand that ships will be required to carry insurance which will be verified by port state inspection procedures upon entry into port.

Lord Hanningfield: My Lords, I thank the Minister very much for that reply which covered much that noble Lords on these Benches were concerned about. It is interesting to note that a meeting will be held this week and that decisions will be taken on future negotiations and future work. If that process is to take two to four years, we shall not know the result of it until long after the passage of the Bill through both Houses. I hope that we can be informed of the progress of that process through Questions or Statements in this House. I was also very pleased to hear the noble Baroness strongly commend encouraging other countries to sign up to the legislation. It is very important that not just European countries but also countries in the rest of the world adhere to it. I thank the Minister for her helpful comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Criminal Defence Service Bill [HL]

Report received.
	Clause 1 [Grant of rights to representation]:

Baroness Ashton of Upholland: moved Amendment No. 1:
	Page 2, line 15, leave out "Secretary of State" and insert "Lord Chancellor"

Baroness Ashton of Upholland: My Lords, in moving this Amendment, I shall speak also to Amendments Nos. 2, 4, 9, 14, 18 and 19.
	The purpose of these amendments is to give the ministerial functions in this Bill relating to legal aid to the Lord Chancellor. The noble Lord, Lord Kingsland, raised the issue in Grand Committee of whether responsibility for legal aid should lie with the Lord Chancellor or the Secretary of State. The noble and learned Lord the Lord Chancellor has given further thought to this and has decided to relocate responsibility for legal aid with the Lord Chancellor.
	While the Constitutional Reform Bill was completing its passage, the noble and learned Lord the Lord Chancellor deferred any further transfer of functions between his two ministerial posts until the contours of the reformed office of Lord Chancellor were clear. This has meant that his legal aid functions in secondary legislation made before July 2003 still lie with the Lord Chancellor. It has always been the intention of the noble and learned Lord, Lord Falconer of Thoroton, to locate all the legal aid functions in one ministerial post and, should your Lordships agree to these amendments, that will be the Lord Chancellorship. I beg to move.

Lord Kingsland: My Lords, this matter was discussed extensively both on Second Reading and in Committee. There is no need to go over the arguments. The Minister has agreed, extremely generously, to restore to the Lord Chancellor his rightful responsibilities for legal aid matters. It only remains for me to thank her very much for doing so.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 2:
	Page 2, line 22, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendment agreed to.

Lord Goodhart: moved Amendment No. 3:
	Page 2, line 22, at end insert—
	"( ) In paragraph 4, "Except where regulations otherwise provide" is omitted."

Lord Goodhart: My Lords, Amendment No. 3 stands in my name, together with that of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Kingsland. In moving it, I shall speak also to Amendment No. 8.
	The purpose of Amendment No. 3 is not self-evident unless one looks closely at some of the background legislation which it seeks to change. It is therefore necessary for me to explain it briefly. That involves going back to the Access to Justice Act 1999, Schedule 3 of which provides for a right to representation by the Criminal Defence Service—which I will refer to informally as legal aid.
	Under paragraph 2 of Schedule 3, legal aid may be granted by a court before which proceedings will take place or, indeed, by other courts as well. That power is subject to the proviso,
	"except in such circumstances as may be prescribed".
	Under paragraph 3 of Schedule 3, regulations may provide that the legal services provision may grant legal aid. Paragraph 4 provides that,
	"Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right to representation or to withdraw a right to representation".
	So far, in fact, the courts have been the sole source of legal aid since the 1999 Act. No regulations have been made under paragraph 3 to give power to the Legal Services Commission to grant legal aid, and no regulations have been made under paragraph 4 to restrict the right of appeal.
	One of the main purposes of the Bill is to facilitate the transfer to the Legal Services Commission of the responsibility for granting legal aid. Although that decision has aroused some controversy and was opposed, for example, by the Bar, we have not thought it appropriate to oppose that particular purpose in the Bill. As explained in the framework document published in May, the Government also intended to remove a right of appeal where legal aid was refused either because of the lack of merits of the case or on the ground of the applicant's failure to meet the criteria for legal aid.
	No attempt was made to oust judicial review, but judicial review was inadequate in the view of many people because the court that reviewed the decision could only either approve the decision of the Legal Services Commission or refer it back to the commission to reconsider it. That elimination of appeals was seriously criticised in debates at Second Reading and in Committee. I welcome that the Government have accepted the arguments that we made in relation to the merits test. A court can now hear an appeal and will now be allowed to consider a decision to reject an application on grounds of a lack of merit; that is, a failure to meet the interests of justice test.
	However, the Government have not altered the position on the eligibility test and there will still be no appeal on that; there will simply be an administrative reconsideration. The Government try to justify that on the basis that it is only a matter of mathematics. They say that all you have to do is look at the figures and make sure that the additions and subtractions have been calculated correctly and you will inevitably come up with the right answer—all that is needed is a check on the accuracy of the calculations. In many cases that is true; but it is not true by any means in all cases. The Government's argument is highly simplistic. Many issues are more complicated than that, even on the test of eligibility. For example, the Government will provide for the aggregation of the means of the applicant for legal aid with those of his or her partner. But what is the test for partnership? That is obviously a potential matter for a court.
	Again, there will be cases in which exceptional circumstances require funding for people who fail to meet the basic eligibility criteria. The Government have recognised that in their supplement to the framework document, and they will provide in regulations for special consideration of these cases but, again, without there being any right of appeal. The Government have said on page 12 of the supplement that the test is whether cases require fine judgments that warrant the intervention of the courts, but it seems to me that when one is looking at those exceptional cases it is exactly that test that is met. Those cases frequently will require the fine judgment that warrants the intervention of the courts. So we on these Benches certainly believe that there are strong grounds for saying that the right of appeal should be extended to cases where eligibility is in consideration and not just the merits.
	To refuse legal aid to a defendant in a criminal case on the grounds that the defendant has failed to meet the eligibility criteria when that defendant cannot for valid reasons afford to pay for independent representation is quite obviously a denial of access to justice. This is therefore an issue of principle. The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court. That is particularly so in a case such as this, where the Legal Services Commission has a conflict of interests, because it has the responsibility for keeping legal aid within budget and therefore arguably has interests which potentially conflict with those of applicants.
	We have therefore put down these two amendments to preserve appeals. Amendment No. 3 removes from paragraph 4 of Schedule 3 to the Access to Justice Act power by regulation to remove a right of appeal. Amendment No. 8 is consequential on this: it removes a power which would then be superfluous if the right of appeal cannot be removed. These amendments have been strongly supported in a briefing paper that we have received from the Law Society.
	We believe that the Government have not yet moved enough on this issue, and that a total removal of the right of appeal on eligibility grounds cannot be justified. I beg to move.

Lord Kingsland: My Lords, at Committee stage we had an amendment covering the same ground, although not as skilfully cast as that of the noble Lord, Lord Goodhart, which we have now withdrawn in favour of the noble Lord's amendment.
	The noble Lord has argued his amendment with his customary cogent relentlessness and left those of your Lordships who have taken an interest in this matter with, I suspect, nothing left to add. I feel somewhat apologetic in standing here to support the amendment tabled by the noble Lord, Lord Goodhart. Not because I have any doubts about its merit, but because I am aware that the noble Baroness, throughout this Bill, with her unique combination of determination and good will, has done everything she can to meet the concerns of the opposition parties.
	We have already had one illustration of her efforts with the amendment that she has tabled to substitute the "Lord Chancellor" for the "Secretary of State". Another good example is the way in which the noble Baroness and her department have striven all summer to produce a thorough and comprehensive set of regulations which set out the detailed calculations necessary to assess whether individuals will be entitled to relief not only at the magistrate's court level but also at the Crown Court level—work which was not anticipated in July but which was requested by your Lordships' House.
	It is a shame, therefore, that this remarkable achievement should be overshadowed by one remaining disagreement that we have. But the issue of the application of Article 6 to the question of appeals is one that the Government have not quite grappled with to our satisfaction. We know from cases such as Alconbury that, where matters of policy are concerned, judicial review often satisfies the Article 6 criteria. However, where it is a case of the rights of the individual, review does not normally go far enough. The illustrations given by the noble Lord, Lord Goodhart, about the definitions that are contained in the admirable set of calculations that the noble Baroness has laid before us make out a sufficiently powerful case for the opposition parties standing their ground on this issue.

Lord Mayhew of Twysden: My Lords, with a lifelong interest in advocacy, as well as a great admiration for the noble Baroness who is to reply, I rise only to say that I am enormously interested to hear how she will address herself to the compelling case that has been made from these Benches—unless of course it is to accept it.

Baroness Ashton of Upholland: What an introduction to my remarks, my Lords. I am grateful to the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Mayhew, who have been incredibly helpful in helping us decide how to take the Bill forward. A lot of work has gone on this summer. That is why officials and I are already tired as we start the parliamentary year, but I am grateful for the acknowledgement of the work that has gone on. It has been detailed and has fulfilled my obligations to the House. I shall endeavour to persuade noble Lords at least to consider the issue one more time, because it is important that we do so. I want to reflect on the principles behind what we have sought to do.
	As the noble Lord, Lord Goodhart, indicated, and expressed pleasure about, we will allow a full appeal to the court on the grounds of misapplication of the "interests of justice" test. Noble Lords will know that our original proposal, when the Bill was introduced, was that the court could consider an appeal only as if it were hearing a judicial review rather than making the decision itself. We also proposed that the court's view would not replace the original decision, but that it would be referred back to the Legal Services Commission. There were strong representations in this House at Second Reading and in Committee. We have changed our minds and our position in the light of that. As the noble Lord, Lord Goodhart, said, the supplementary framework document, which was laid before Parliament last Monday, makes our revised position clear. The court will hear appeals on the interests of justice. It will be able to consider the matter afresh, and its decision will replace that of the Legal Services Commission. I hope that that goes some way to addressing noble Lords' concern in Committee.
	I undertook to bring forward amendments to clarify the process, and have done so. We do not consider that we have to make specific amendments in primary legislation, as the appeals process will be set out in secondary legislation. However, I have provided draft secondary legislation which demonstrates how the appeals process will work. I hope that it meets your Lordships' approval.
	We do not accept that we should allow a full appeal to the court when an applicant alleges that there has been an error in making an assessment on financial eligibility. I have discussed that with senior members of the judiciary, who gave me permission to report to the House that I did so. They agreed with me when I met them last week—they confirmed it again to my officials this morning—that the matter is administrative rather than judicial in nature. They believe strongly that an appeal to the court would simply divert judicial resource to an inappropriate area of work. Ultimately, if the Government set the eligibility levels too low or if an individual is unable to get mistakes corrected, there is recourse to the courts through judicial review. The Government and the senior members of the judiciary agree that that affords sufficient oversight by the court. Should there be a fundamental or material change to an applicant's financial circumstances, he will, of course, be able to re-apply.
	My two assertions are, first, that we have dealt with the issue of the interests of justice—to your Lordships' satisfaction, I trust—and secondly, that, in consultation with the senior judiciary, we are clear that we are talking about an administrative function best done in the way that I shall describe and that is not appropriate to be taken up by the judiciary.
	Noble Lords will know that grant of legal aid is a two-limbed test—financial eligibility for legal aid, and its being in the interests of justice. If the applicant passes the "interests of justice" test, it may well be that he should be represented. The question is who should pay—the defendant or the state. We believe—it is a fundamental basis of the Bill—that those who can afford to pay for their own defence should do so. We have made it clear that, just as happens now with defendants who choose to pay for their own representation, an individual who is acquitted will be entitled to apply for reimbursement of their legal costs.
	It has been put to me that there are certain circumstances in which the issues may be more complicated; we discussed them with the judiciary. For example, a defendant might choose to use the fact that he has to pay for his own defence as an excuse to defend himself, and it might be in someone else's interest for him to be represented. Provision already exists to prevent a defendant from using cross-examination of witnesses as a method of bullying. The Youth Justice and Criminal Evidence Act 1999 deals with cross-examination by the accused. Section 34 prevents a person accused of a sexual offence cross-examining the complainant in connection with the offence. Section 35 does the same in certain types of case where the witness is a protected witness such as a child. Section 36 enables the court to direct—either on the application of the prosecution or of its own motion—that the accused is not to cross-examine a witness in any case not covered by Sections 34 or 35. That would include, for example, a domestic violence case, if the quality of the witness's evidence is likely to be diminished if the accused cross-examines in person, and is likely to be improved if a direction is given, and if it would not be against the interests of justice to give a direction. Arrangements can then be made for a legal representative to do the cross-examining. That applies in both the magistrates' courts and the Crown Courts. The legislation will be unaffected by the re-introduction of a means test.
	We have done the interests of justice test. We have confirmed with the judiciary that it considers it to be administrative. And I have made it clear that under the sections of the Act that I have indicated, it is possible for the courts to instruct for representation to be given because it is in the interests of the other party or the victim.
	It has been put to me that situations which might affect the interests of justice test, such as an unforeseen legal point, can arise during a trial. Noble Lords who are lawyers will understand that. If that happens it will be possible to make an application during the short adjournment, when it will in any case be necessary to instruct a legal representative. We intend that the means-testing process will be very straightforward with minimal, or no evidence required to be produced at the point of application. Thus the means test will not slow down the court process. That is another reason why noble Lords felt it important to consider this issue.
	It is also worth pointing out that in the Crown Court, where cases are more serious and their presentation more complex, no individual will be denied legal aid on the ground of means. Instead, if the means test is not passed, a contribution will be required as a condition of legal aid being made available.
	It is important to remember that the means test will not be absolute. If an individual fails the means test, but nevertheless cannot afford to pay his legal expenses, to pick up the point made by the noble Lord, Lord Goodhart, either because the individual has unusually high living costs, or because his case is unusually expensive, he can apply to the Legal Services Commission to grant legal aid on the basis of a hardship test. In those circumstances, rather than using proxy measures, the LSC will look at the actual resources available to the individual and decide whether or not legal aid should be granted.
	I think—certainly from my discussions with the judiciary—that we have covered a range of the issues that were raised on why there should be an appeal in court. It was either because the judiciary wanted it, there might be circumstances when a victim might be in some difficulty or there might be exceptional circumstances for the individual—the hardship test. I believe that we have made all those stack up. In addition, the process will be simple and straightforward. Therefore, there will be no delay in court proceedings, which is another issue that has been raised with me.
	I have deliberately spent time giving noble Lords the detail of the refinements because it is important to understand how much work has gone into making sure that the system does not deny people access to justice or representation in all the circumstances within the context of the purpose of this Bill, which is to introduce a means test, and which is supported in principle by your Lordships' House.
	The noble Lord, Lord Kingsland, referred me to Article 6 as a key part of the reason why he ought to support the amendment. I refer him to the Seventh Report of the Joint Committee on Human Rights on appeals, which states:
	"We accept the Government's view that, given the technical nature of the decision involved in application of the means test . . . Article 6.3.c is likely to be satisfied by an internal appeal within the LSC, in combination with a right of judicial review".
	The Government are right to take notice of what the Joint Committee said, and I ask your Lordships to do the same.
	Let me explain why we cannot support the two amendments. Amendment No. 3, as the noble Lord, Lord Kingsland, said, would remove the existing power to prescribe cases in which an applicant cannot appeal against a decision. The noble Lord gave some of the history of paragraph 4 of Schedule 3 to the Access to Justice Act. The Legal Aid Act 1988 was replaced by the Access to Justice Act 1999. Section 21(10) of that earlier Act gave a power—not a duty—for regulations to provide for appeals.
	Under the Legal Aid Act , appeals were not available in every case. On the right of review of merits decisions, appeals were not available if the individual had renewed his application, nor did the appeals process apply to certain summary offences. Furthermore, there was no right of review of eligibility decisions. An individual could only renew his application.
	While it has not yet been necessary to prescribe the cases in which no appeal would be given, as the noble Lord, Lord Goodhart, indicated, the power was put there should it be needed, and we wish to preserve it. As I stated in Committee, this power would never be used to implement regulations that seek a wholesale ban on the right of appeal. The right of appeal is a fundamental element of the new system that we hope to introduce and will remain so.
	It is important to be able to guard against abuse of the system; for example, if we remove it, an applicant could submit countless appeals against an unfavourable decision. We want to retain the power so that we have the ability to tackle abuse of that kind. In doing so, we are trying to be sensible and prudent, but I make it absolutely clear that we would not use it in any shape or form to seek a ban on the right of appeal. As we are simply replacing what is already in law, I hope that noble Lords will feel able to withdraw Amendment No. 3. It is a power to which your Lordships have agreed in passing the Access to Justice Act.
	I have dealt with the overarching reasons why I cannot support Amendment No. 8. The decision on eligibility as regards the means test is a matter of fact rather than opinion. I have already indicated that the senior judiciary hold that view and that there are very clear ways in which we shall ensure that issues of hardship or concern for other parties will be dealt with. However, we believe that a full appeal should lie with the court only on the ground of misapplication of the interests of justice test. A suspected error in applying the test of financial eligibility would be examined by way of a review. Should the outcome of the review be that there has been an error, legal aid will be granted if the interests of justice test is satisfied. Only if the original decision is upheld will the court become involved through the judicial review process. I agree with the senior judiciary that this is a better use of the court's resources.
	I believe that I have gone a long way to meeting all the concerns raised with me at Second Reading, in Committee and throughout the summer about why there may be a need for such an appeal to be given. I believe that the Government have satisfied each and every one of those in the way that we have put this matter forward. But, as always, I am willing to continue the dialogue and I could perhaps provide the opportunity for the noble Lords, Lord Goodhart and Lord Kingsland, to discuss the matter either with the judiciary, if they are willing, or with me again. I hope and believe that I have resolved all the reasons why we should leave this as it stands currently. I recognise that it is an administrative function and that, if there are errors, they will be dealt with and that, if there are exceptional circumstances, they will be taken into account. If there is any potential difficulty or danger for a victim or a witness, the power already exists for the court to do something different. I believe that in our supplementary document we have laid out the simple, clear process that the courts can administer very quickly.
	I take heed of the views of the judiciary on this and what the Joint Committee on Human Rights has said in Article 6.3. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Goodhart: My Lords, the noble Baroness has made a very persuasive attempt to put this off one more time. I am afraid that, for a number of reasons, I do not find it possible to accept that. First, it is contrary to a principle of the House—although it is a principle that is often broken—that voting should not normally be deferred to Third Reading.

Baroness Ashton of Upholland: My Lords, I was making the offer because the noble Lord has, I trust, been away on a fantastic holiday and was not able to discuss these issues with me in any great detail. If the noble Lord wishes to vote, that is fine, but I believe I have answered the questions.

Lord Goodhart: My Lords, the second reason why I do not wish to delay the matter is that the noble Baroness has given no indication of any willingness to consider this issue in detail. Thirdly, if the amendment were passed by your Lordships' House, further negotiations on it would not be stopped. It would be impossible to restore to paragraph 4 of Schedule 3 the words that are removed from it, but it would be perfectly possible to discuss issues such as requiring a formal application for leave to appeal to be made so that cases that do not raise appropriate issues would not require a full hearing. Certainly I should be perfectly prepared, as I am sure would the noble Lord, Lord Kingsland, to be involved in any discussions about such issues.
	Nothing that the noble Baroness has said has really gone to the root of the principle behind the matter. The views of the senior judiciary are interesting, but not, I think, binding. It is hard to see in any event why an additional flood of appeals is likely if this amendment is passed, when there is no evidence of abuse of the present right of appeal which has existed since 1999. So, I do not find that a very persuasive argument. And of course the views of the judiciary are contrary to the view of the Law Society.
	There will be many cases, probably most, where there will be no grounds for changing a decision made below because such a case is simply a matter of mathematics, but, as I tried to show—and hope I did show—in moving the amendment, there will be cases on eligibility as well as on the interest of justice that need judicial consideration. It is plainly appropriate that it should happen. Therefore, I shall seek the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?
	Their Lordships divided: Contents, 145; Not-Contents, 137

Resolved in the affirmative, and amendment agreed to accordingly.

Baroness Ashton of Upholland: moved Amendment No. 4:
	Page 2, line 28, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendment agreed to.
	Clause 2 [Rights to representation: financial eligibility]:

Lord Goodhart: moved Amendment No. 5:
	Page 3, line 6, after "Regulations" insert "shall make provision for exceptions from sub-paragraph (1) or (2)(a) if the interests of justice so require and"

Lord Goodhart: My Lords, under sub-article 3(c) of Article 6 of the European Convention on Human Rights, anyone charged with a criminal offence who cannot pay for a lawyer has the right to free legal assistance
	"when the interests of justice so require".
	That is something I believe is right in principle. We on these Benches were concerned that the Bill as drafted might restrict that right.
	Since the Committee stage, the Government have taken a number of constructive steps. First, the original version of Clause 2(4) provided that,
	"The grant of a right to representation shall be taken to be in the interests of justice in such circumstances as may be prescribed".
	That formula could have been used negatively as well as positively; that is, anything not in the regulations would not have been regarded as being in the interests of justice. The Government, by their Amendment No. 11, have replaced these words with words that appear to be incapable of being used to restrict the definition of the interests of justice. That new wording seems to rely on a helpful suggestion made in Grand Committee by the noble and learned Lord, Lord Mayhew of Twysden.
	Secondly, the Government have stated, in the recent supplement to their framework document, that the courts will have power to decide on appeal what is in the interests of justice, not merely to review that. Thirdly, the Government will make provision for exceptional cases that would not otherwise satisfy the eligibility rules. I accept that in this case the Government have moved a reasonable and acceptable distance. It is therefore my intention, having moved this amendment, that, after the debate, I will beg leave to withdraw Amendment No. 5, and will support the Government's Amendment No. 11. I beg to move.

Lord Kingsland: My Lords, I share entirely the sentiments of the noble Lord, Lord Goodhart, and thank the Government for meeting the various points made with respect to this issue in Committee.

Lord Mayhew of Twysden: My Lords, if it be indeed the case that I was of any help to the Government in producing their amendment, it is only appropriate that I should express my humble thanks.

Baroness Ashton of Upholland: My Lords, the noble and learned Lord, Lord Mayhew, was very helpful. Indeed, he was the only noble Lord I was going to mention by name for his contributions in Committee. I am not sure that my speaking notes now work at any level because of what the noble Lord has said, so I will just briefly explain the purpose of Amendment No. 11.
	As noble Lords have said, there was concern about our proposed amendment to paragraph 5(4) of Schedule 3 to the Access to Justice Act 1999; in particular, as the noble and learned Lord, Lord Mayhew, has indicated, that the proposed wording would make it easier for the Government to restrict the circumstances in which the grant of a right of representation should be taken in the interests of justice. I tried to reassure noble Lords in Committee that it was not our intention to restrict the interests of justice test, and, in order to reinforce that commitment, and to provide further reassurance, we have tabled Amendment No. 11 to give greater clarification around that paragraph. I hope that I have succeeded, which seems to be the case, and that noble Lords will feel able to withdraw their amendments in support of Amendment No. 11.

Lord Goodhart: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 6 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 7:
	Page 3, line 7, leave out "(2)(a)" and insert "(2)"

Baroness Ashton of Upholland: My Lords, as noble Lords will have noticed, as the Bill is currently drafted, the granting authority would have no option but to withdraw the right of representation where the applicant has failed to comply with regulations about the furnishing of information. The amendment I am now proposing would allow regulations to make exceptions to the provision on withdrawal.
	It might assist the House if I explain why this amendment is being brought forward at this time. We recognise that, in some circumstances, information that is considered quite reasonable for the granting authority to require will not be essential in determining an applicant's financial eligibility. In these situations, it seems sensible to remove the automatic obligation on the granting authority to withdraw the right of representation. The obvious example might be if the applicant forgot to put their postcode on the form. However, I stress that we are not removing the power to withdraw the right to representation in those cases where it might be proper and correct to do so.
	I hope, on the basis of what I have indicated, that your Lordships will feel able to accept this amendment. I beg to move.

On Question, amendment agreed to.

Lord Goodhart: moved Amendment No. 8:
	Page 3, leave out line 14.
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 9:
	Page 3, line 15, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendment agreed to.
	[Amendment No. 10 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 11:
	Page 3, leave out lines 22 and 23 and insert— "
	(4) Regulations may prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice."
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 12:
	Page 3, line 23, at end insert—
	"( ) In section 25 of that Act (orders, regulations and directions), after subsection (9) there is inserted—
	"(9A) The first regulations under paragraph 3B of Schedule 3 shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.""

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 17. Those of your Lordships who were present in Committee will recall that I signalled the Government's intention to table amendments on Report to ensure compliance with the recommendation of the Select Committee on Delegated Powers and Regulatory Reform.
	The two amendments concern paragraph 3B of Schedule 3 to the Access to Justice Act 1999, which refers to financial eligibility and Section 17A of that Act, regarding contribution orders. In both cases, the amendments will ensure that the first regulations under those statutory provisions will be subject to the affirmative resolution procedure. As the Government give considerable weight to the views of the Delegated Powers and Regulatory Reform Committee, I trust that your Lordships will also feel content to support the amendments. I beg to move.

On Question, amendment agreed to.
	Clause 3 [Rights to representation: contribution orders]:

Lord Goodhart: moved Amendment No. 13:
	Page 3, line 42, leave out "shall" and insert "may"

Lord Goodhart: My Lords, I move the amendment in the absence of my noble friend, who is unfortunately detained by his duties in court and has been unable to get here. The noble Baroness will, I am sure, be pleased to hear that it is no more than a probing amendment, which we tabled at the request of the Law Society.
	We welcome in principle the reintroduction of the means test for criminal legal aid in the magistrates' courts and, in due course, in the Crown Court. As it happens, the application of the means test to the Crown Court has come more quickly than was originally anticipated and raises one or two questions that need answering. In particular, Crown Court cases are much more expensive than cases in the magistrates' courts. Even in the magistrates' courts, there are already problems with people who need representation but are unable to pay for it, even if the cost is no more than £500. That is only the average cost of a case under legal aid; it is not the maximum cost under legal aid. In any event, if an independent counsel or solicitor has to be appointed, the costs are likely to be considerably higher than they are under legal aid. So, significant amounts of money are involved. It will, of course, be much more acute in the Crown Court. I was wondering whether any research had been done into what the average cost of a privately funded Crown Court case is likely to be. That will be significant in deciding a reasonable level for the means test.
	If the means test is set too high, there will, as the noble Baroness has pointed out, be a corresponding increase in the number of unrepresented defendants who have the right to cross-examine their victims in court. That has been a cause of considerable stress to witnesses in the past, and it is not something that we wish to see increased. What information do the Government have on what they anticipate the average cost of privately funded defences in the Crown Court to be? If they do not know, they certainly should know before they get around to fixing the level at which the means test is to be applied. Can the Government confirm what their plans are for ensuring that we do not end up with a significant number of unrepresented defendants being allowed to cross-examine victims in person. I beg to move.

Lord Kingsland: My Lords, I understand the concerns expressed by the noble Lord, Lord Goodhart. In an ideal world, it is always desirable to put the horse before the cart. If one had a thorough knowledge of the costs of Crown Court proceedings at one's fingertips with regard to the various sorts of prosecution that arise in those courts, accurate assessments of cost contributions would be easier to make. Nevertheless, I applaud the speed with which the Government have reacted to concerns expressed by Members of your Lordships' House in Committee last July and brought forward what I consider, in the circumstances, to be a well thought-out approach to the problem of Crown Court costs relating both to income and capital contributions.
	There is much more work to be done, and I know that the Government freely acknowledge that. Nevertheless, the Government are moving in the right direction in an area that inevitably, as the noble Lord, Lord Goodhart, said, raises greater complications than cases in magistrates' courts.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for explaining what lies behind the amendment. In the Crown Court scheme that we propose, we are not barring legal aid because of means; instead, we are looking for contributions. So, there are fundamental differences in the way in which we approach the matter. My understanding is that there are so few cases of the type that the noble Lord described that is quite difficult to do research. However, we have already indicated in a supplementary document that, in any event, before we move forward on particular schemes, we will consult widely. Hence, our request for your Lordships to agree the principles behind what we are doing and to recognise that, when we introduce regulations, as we will for the magistrates' courts, they will reflect that consultation.
	Having checked this with our legal advisers, I must say that what the noble Lord seeks to achieve with the amendment is already covered in the Bill. The phrase "in prescribed circumstances" gives the discretion that the noble Lord seeks with the amendment. We do not impose any duty to make regulations stating when a contribution shall be made; we merely grant a power to do so. We have already indicated that the first set of regulations will be subject to affirmative resolution in Amendment No. 17. As I have said, there are no plans to make contribution orders in a magistrates' court. Having the phrase "in prescribed circumstances" allows us to introduce the de minimis rule.
	We have a scheme that would enable contributions rather than obliging people to pass a means test in the Crown Court. With regard to the means test in the magistrates' court, there is the flexibility to make sure that we consult widely. In the course of doing so, we will take on board what the noble Lord, Lord Kingsland, said about the variety of cases. Specifically, because it is dealt with in regulations, we have the opportunity, as I said at Second Reading, to correct any concerns raised in the course of the operation of the scheme. Debate on later amendments will enable us to think through how we put it into operation.
	I think that I have answered the noble Lord's point. I will check and, if need be, I shall write to him.

Lord Goodhart: My Lords, I am grateful to the noble Baroness for answering in her usual open and efficient manner. As I said, it was a probing amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendment No. 14:
	Page 4, line 23, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 15:
	Page 4, line 27, at end insert—
	"( ) Regulations under subsection (1) shall provide that an order made under the regulations may not order the payment of costs to the extent that they are already the subject of an order under section 17(2)."

Baroness Ashton of Upholland: My Lords, this amendment mirrors an earlier amendment to Section 17 of the Access to Justice Act. Briefly, I shall explain to your Lordships' House why the amendment is necessary. Section 17 of the Access to Justice Act allows for recovery of defence costs orders to be made against defendants. The assumption is that they will be made at the end of the case. However, the Bill introduces a new Section 17A, which enables the granting authority to require legally-aided defendants to make contributions towards their legal costs. We would ordinarily expect contribution orders to be made at the start of the case. In addition, the Bill also amends Section 17, so that a defendant does not have to pay twice where a contribution order has been made at the outset and a recovery of defence costs order at the end.
	That said, it is also possible, for example, that a contribution may fall due after a recovery of defence costs order has been made. We need to avoid double recovery in those circumstances, and this amendment provides accordingly. I should stress that those arrangements do not mean that a defendant could not be made subject to both orders in order to recover defence costs incurred by the individual. However, it would be unconscionable for both a contribution order and an RDCO to bite if their combined effect means that the defendant has to pay more than the total costs of his defence. I hope that in light of that explanation noble Lords will be able to support this Government amendment. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 16:
	Page 4, line 27, at end insert—
	"( ) Regulations under subsection (1) may—
	(a) be made so as to have effect only for a specified period not exceeding 12 months;
	(b) provide that their provisions are to apply only in relation to one or more prescribed areas."

Baroness Ashton of Upholland: My Lords, as noble Lords will recall, in Committee, I undertook to provide the House with details of the means testing model being developed for the Crown Court. The scheme is laid out in the supplement to the framework document, which I think noble Lords have received with pleasure. As we make clear, it will require the defendant to make an income-based contribution to his defence costs. It is our intention to consult fully on the precise method through which this contribution should be collected; either as a single up-front payment or as a regular contribution through the life of the case.
	I am sure that your Lordships would also agree that there are clear benefits to be obtained from thoroughly testing the scheme on the ground. It is for this reason that the Government wish to take the power to pilot before any wider national rollout. I hope that I can rely on your Lordships' support for this amendment. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 17:
	Page 4, line 29, at end insert—
	"( ) In section 25 (orders, regulations and directions), in subsection (9A) (inserted by section 2 of this Act), after "under" there is inserted "section 17A or"."
	On Question, amendment agreed to.
	Clause 5 [Short title, commencement and extent]:

Baroness Ashton of Upholland: moved Amendments Nos. 18 and 19:
	Page 5, line 17, leave out "Secretary of State" and insert "Lord Chancellor"
	Page 5, line 20, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendments agreed to.

Road Safety Bill [HL]

Lord Davies of Oldham: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]

Earl Attlee: moved Amendment No. 92:
	After Clause 20, insert the following new clause—
	"OFFENCE WHERE REGULATIONS ARE CONTRAVENED, ETC.
	In section 42 of the Road Traffic Act 1988 (c. 52) (offence where regulations are contravened, etc.)—
	(a) for subsection (1) substitute—
	"(1) Subject to subsections (2) and (3) below and sections 43 and 44 of this Act, a person who—
	(a) contravenes or fails to comply with any regulations under section 41 of this Act, or
	(b) uses on a road a motor vehicle or trailer which does not comply with any such regulations or causes or permits a vehicle to be so used,
	is guilty of an offence.";
	(b) after subsection (2) insert—
	"(3) This section shall not apply to the Secretary of State or an employee of the Secretary of State or his agent, provided that—
	(a) the vehicle is being used solely for or in connection with measuring or auditing the ability and willingness of a vehicle testing station approved under section 45 or 49 of this Act to detect vehicle faults and refuse test certificates where appropriate,
	(b) a risk assessment has been carried out and a copy of the risk assessment is carried on the vehicle, and
	(c) no significant risk to other road users can be foreseen from using the vehicle for the purpose mentioned in paragraph (a) above.""

Earl Attlee: The Vehicle and Operator Services Agency—VOSA—is responsible, among other things, for ensuring that the network of MoT testing stations operates to an appropriate and a high standard. It uses incognito vehicles to check the operation of testing stations. There is no problem with ensuring that an MoT station is not failing vehicles unnecessarily due to ignorance, excessive zeal or something more sinister. VOSA just uses what it believes to be a perfectly serviceable vehicle. However, it is unable to use a vehicle which should fail because it is unroadworthy, since it would be an offence to use such a vehicle on the road. It would be wincingly obvious if it turned up at the testing station with a car on a transporter and unloaded the vehicle on the garage forecourt. It would hardly be incognito.
	My amendment would remove that difficulty by allowing VOSA officials to use a defective vehicle on the road for that purpose. Of course, I have put in place a number of safeguards. I accept that my amendment will not be perfectly drafted, but I would be interested to hear the Minister's response. I beg to move.

Lord Davies of Oldham: I am grateful for the constructive work that the noble Earl has put into this amendment. We understand the thinking behind it. It is quite a reasonable proposal and is one way in which the Department for Transport can ensure that standards of vehicle roadworthiness are maintained. We have already recognised the benefits of adopting such a measure. We recently consulted on the proposal to introduce exactly that sort of covert check at MoT garages. I am sure that the noble Earl will be aware of that. The consultation received a positive response and we are in the process of amending secondary legislation to permit VOSA examiners to carry out those covert checks, with which I know the noble Lord sympathises. Registers will be kept of the vehicles involved and VOSA vehicle examiners will ensure that only relatively minor defects will be introduced on the covert vehicles. There will be no defects that would affect the safety of the driver or other road users.
	However, there are a number of reasons why it would not be justified to apply those covert check procedures to VOSA inspectors in heavy goods vehicle testing stations, which I think that the noble Earl is interested in doing. First, it will be recognised that there are far fewer VOSA inspectors than there are MoT testers, so standards among VOSA staff are far easier to monitor and maintain under existing arrangements. It is also important to recognise that VOSA inspectors carry out only vehicle testing. They are not involved in vehicle repairs, as are most MoT testers. As such, they are far more familiar with test procedures than most MOT testers, whose main burden of business lies elsewhere. Similarly, all VOSA goods vehicle testing stations have a standard layout of test lanes to help to ensure that standard procedures are constantly applied. Finally, VOSA inspectors are already subject to regular quality assurance checks. Even if it were decided to widen the scope of the initiative to include covert checks of VOSA goods vehicle testing stations, the legislation could—I should like to assure the noble Earl on this—be amended by statutory instrument. Therefore, if we were persuaded of the argument, we could introduce that fairly rapidly.
	I hope that the noble Earl will recognise, therefore, that we have some reservations about the necessity of this being extended to VOSA staff and goods vehicle testing and that he will appreciate that we understand the motives behind his amendment; we recognise the value of the work that he has carried out; and we are not hostile, in principle, to what he seeks to achieve. We think that we are achieving that in other ways. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Attlee: I go around your Lordships' House and when people ask me whether I have had a good summer, I say, "I've had an absolutely fabulous summer in all respects". This is a fabulous start to Committee stage. I am extremely grateful for the Minister's comments. I was not aware of ongoing work. My amendment was not targeted at HGV testing but at car testing stations, where I suspect there is a greater problem for the reasons that the Minister described. I included HGV testing stations because I quoted Section 45 on car MoTs and Section 49 on goods vehicles MoTs just to be comprehensive. I am extremely grateful for the Minister's response. With no hesitation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 21 [Breach of requirements as to control of vehicle, mobile telephones etc.]:

Lord Hanningfield: moved Amendment No. 93:
	Page 23, line 33, after "vehicle" insert "or pedal cycle"

Lord Hanningfield: The purpose of the amendment is clear and simple. If people are cycling and using mobile phones at the same time, they present a hazard not only to themselves but to other road users. We can send out a strong message to all road users that the use of mobile phones can result in them not paying sufficient care and attention to what is happening and therefore putting themselves and others in danger.
	I suspect that the Minister will tell the Committee that it is already an offence to be in charge of a cycle while not properly in control of it, and that using a mobile phone while cycling demonstrates that the cyclist is not cycling safely. If cycling while using a mobile phone is an unsafe and undesirable practice and the Government are aware of the problem, why should there be a specific offence that applies to motorists but no specific offence that applies to cyclists? I would be grateful for any explanation to justify such a distinction.
	I fear that identifying a particular example as a specific offence might undermine the general message that people should have full control over their vehicles while driving and indeed full control over their bicycles while cycling. That is the amendment's import, which would make it apparent that even the Government accept that vulnerable road users, even if they do not happen to be at the wheel of a car, have a duty to themselves and others. I beg to move.

Viscount Simon: I am delighted to hear what the noble Lord, Lord Hanningfield, just said. He stated that using a hand-held mobile phone is dangerous. The same applies to hands-free mobile phones. The person at the other end of the phone does not know what one's driving conditions are or what else is happening on the road and therefore one's concentration can be badly affected. Transport Research Laboratory research has shown that reaction times for drivers using mobile phones—both hands-free and hand-held—are worse than those for drivers over the blood alcohol limit. That leads to increased likelihood and severity of collision.
	A considerable body of research indicates that the impairment caused by hands-free mobile phones is as significant as that caused by hand-held mobile phones. The impairment occurs primarily through distraction from the conversation and not from taking a hand off the wheel. Therefore we go back to the distraction of the person at the other end of the phone. Continuing to allow hands-free mobile phone use may give the mistaken impression that that is safe driving behaviour. It is not. An evidence-led policy on mobile phones would suggest that both types of phones should be banned.
	It is sometimes argued that banning the use of hands-free mobiles would be unenforceable. However, even if the ban on the use of hands-free mobiles were not in force, it would still be possible for police crash investigators to determine afterwards if the driver had been engaged on a mobile phone conversation at the time. A case has already come to court following a fatal collision last year. The driver would by definition be guilty of an offence and any injured parties would automatically be able to initiate a damage claim without having to wait for the courts to decide whether the driving amounted to careless, dangerous or some other form of bad driving offence.
	A ban would also prevent manufacturers from promoting hands-free mobiles as being recognised in law as safe for use in cars, contrary to the evidence.

Lord Bradshaw: I back up what the noble Viscount, Lord Simon, said. I fear that the reason people use hands-free equipment is that it is known that there is no way of enforcing the law or prohibiting the use of hands-free equipment, because any policeman or other enforcement agency cannot see it. However, it leads to a serious situation in that people promote hands-free phones as safe. They are safe only from anybody detecting their use; they are certainly not safe in respect of other road users and other drivers. When the Minister sums up I would like him to underline the message that the Government are not in the business of promoting unenforceable laws, but nonetheless should deprecate any organisation that promotes things it says are safe but that it really means are undetectable.

Lord Berkeley: I agree with what my noble friend Lord Simon said about hands-free phones, in which he was supported by the noble Lord, Lord Bradshaw. There is a new type of hands-free phone. It clips around one's ear and has a spike that goes toward one's mouth, which hears what one says. I bought one a few months ago, not so that I could break the law if it is amended by Amendments Nos. 96 and 97, but so that I could use it on my bicycle. The comments of the noble Lord, Lord Hanningfield, about using a mobile phone on a bicycle are right. It is dangerous to cycle along the road with one hand on the handlebar and holding the other hand to one's ear.
	I bought one of these things that clips on to one's ear, and it works fine if you are stationary. However, once you are moving the wind is blowing past you and whereas you can hear what the other person is saying, they cannot hear what you are saying because it is like the noise of a mighty rushing wind. They are useless when going along on a bicycle and, I presume, on a motorbike. My son has had the same experience. To the question of bicycles and mobile phones the answer is to stop. It is the only solution, if you want to be on the phone, much as you want to keep going. The noble Lord has a point, but it should apply both to traditional mobile phones and the ones that are hands-free, because the latter do not work anyway.
	I turn to Amendments Nos. 96 and 97. I do not think the fact that police cannot detect them should be a reason for not including hands-free mobiles in the definition of a mobile phone. If you have one of the things clipped to your ear the policeman can see that—if he happens to be around, which is probably unlikely, but he might be. It is possible to check through the mobile phone companies whether someone was using a mobile phone if there has been an accident. If you are on a bicycle you tend to get run into by cars just as frequently when people are using a hands-free mobile phone as when they are using an ordinary mobile phone while driving, because they are not concentrating. I support all the amendments.

Baroness Gibson of Market Rasen: I remind the Committee that I am the president of RoSPA. I rise to support all that has been said by other members of the Committee. RoSPA's position is relatively simple: all these devices are extremely distracting. It believes firmly, as I do, that the use of any kind of mobile phone or such instrument should not be supported, whether one is in a vehicle or on a vehicle—as in the case of a cycle. I hope that my noble friend, who knows RoSPA as well as I do, will listen to the arguments.

Lord Davies of Oldham: In response to the last point made by my noble friend, while I may know RoSPA as well as she does, I am not kept as up to date. I am grateful for her reference to the support being offered by RoSPA to her contributions. I am all too well aware that the use of mobile phones while driving causes a great deal of interest among noble Lords. Indeed, in days past I was partly responsible for helping to stimulate that interest, so it is only proper that I should now respond to the challenging arguments now being put forward. The debate has moved on and obvious anxieties are being expressed about the use of hands-free devices.
	I want to make it clear that I agree with all noble Lords who have spoken in the debate that it is dangerous to drive unless concentrating fully on that task and that it is difficult, if not impossible, to concentrate fully while also dealing with a telephone. In supporting these amendments, noble Lords have indicated that they are aware of the distinction we feel obliged to draw between mobile phones which can be banned because it is possible to enforce a ban—their use can be observed—and those whose use cannot be observed. It is not clear that the user is actually employing the telephone while driving and that difficulty persists.
	I hear the argument that after an accident it may be possible to identify that a mobile phone has been used. Under the present circumstances, an offence is committed if a driver is not fully attentive when driving the vehicle. If he then causes an accident and the police are able to testify that a mobile phone was being used at the time, such testimony will not add much to the credit of the driver when it comes to apportioning blame for the accident. In that sense, the use of a mobile phone while driving will be taken into account and drivers should be aware that we regard the use of all forms of telephone equipment in cars, handheld or not, as posing a potential hazard.
	However, we are obliged to give the police a proper role in law enforcement. As the noble Lord, Lord Bradshaw, put it so graphically—I could not express it better—there is a difference between effective law enforcement and the commission of this form of offence. So I endorse all that he said and I am only too happy to go on the record to the effect that the Government do not regard the use of a telephone while driving a car as sound, safe and sensible behaviour. People take risks when they do it and it could be that their position will be affected very adversely if they are involved in an accident—even if they were not using the type of telephone equipment we have sought to ban. I want to make that point clear.
	Another aspect of this issue concerns pedal cyclists. I am aware that cyclists can occasion a certain amount of discomfort for other road users. While cyclists often say that they have to flee from dangerous motorists, they themselves become the hazard faced by pedestrians, who also have rights to road space. We are concerned to enforce the law where it is appropriate to do so; that is, when cyclists behave in a dangerous manner. Moreover, let me remind the Committee that the penalty for careless cycling is a maximum fine of £1,000, while that for dangerous cycling is £2,500. If anyone is under the illusion that it is possible to cycle with no respect for the law and that there are no condign punishments consequent on actions which may be dangerous to other road users, I can assure them that that is just not the case. The police are able to charge people appropriately and the maximum penalties can apply. So we maintain that the police have adequate powers to deal with those whom they consider to be cycling dangerously or carelessly, and I think it will be recognised that it is easier to observe cyclists badly misbehaving on the road than it is others. For all sorts of reasons, it is also easier to effect an arrest. Lastly, there is greater public pressure on cyclists simply because they are closer to people who may be able to do something about their behaviour, or at least to demonstrate their concern. It is more difficult with driving because we all have the prime objective of staying safe.
	I hear what my noble friend Lord Berkeley has said about his experience with using a particular hands-free device while cycling. He has obviously road-tested it and found it to be entirely unsatisfactory. I am not surprised about that. All sorts of devices are used by cyclists to keep themselves entertained while negotiating difficult traffic conditions. All I can say is that they scarcely aid their personal safety. However, most of the equipment is pretty visible, and if the police think that a cyclist is posing a danger to other road users—or even to him or herself—they can take action. We are also mindful of the fact that we do not want unnecessarily to clutter the statute book with an extensive range of offences. We think that we have the issue of cycling under control, although noble Lords may respond by saying that they are conscious that over recent years cycling behaviour has somewhat deteriorated. That may or may not be the case and I have not seen any figures which attest to that opinion, but I have heard plenty of anecdotal evidence, as I am sure we all do. Bad cycling behaviour is very overt and we believe that the offences in place on the statute book are adequate. This is merely a question of enforcement, which is easier for the police.
	The problem before us is that of the use of hands-free telephone equipment in cars is a difficult offence to enforce. We do not have official statistics on the number of prosecutions for failing to maintain control, but an informal survey of police forces in England and Wales suggests that during 2004 move than 50,000 fixed penalties were issued. The use of hand-held phones therefore seems to be reducing as the new prohibition comes into force and we are conditioning driving behaviour. Further, we are spending half a million pounds on campaigns to point out to drivers exactly the message which all who spoke in this debate were eager to articulate; namely, that there are inherent dangers in using such devices while driving. The Highway Code tells drivers that they have to maintain proper control at all times and warns them that using hands-free equipment is likely to be distracting.
	I hear the arguments put forward by the noble Lord in moving his amendment, and he anticipated my response in his opening statement. I am sorry that I am not able to produce anything more novel, but I think that he will recognise the validity of my argument. We have made progress on hand-held phones, and I acknowledge the problems of enforcement with regard to the other kinds. However, we are communicating vigorously to the public the dangers of availing themselves of these devices whether they are driving cars or riding pedal cycles. They may find themselves in a position where such telephone use would count heavily against them should an accident take place for which they were responsible. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Viscount Simon: I was delighted to hear what my noble friend said. He said that 50,000 fixed-penalty notices have been applied so far and I am assuming that they are in relation to motorists. In all the years that I have been going out on traffic control, I have not yet seen any bicyclist stopped for any offence whatever, let alone for using a mobile phone.
	I am delighted that my noble friend Lord Berkeley has said that using his Bluetooth system does not work when he is moving. That is a very efficient system. I wonder whether a similar system could be applied to a moving vehicle whereby if the wheels are moving a mobile phone cannot not be used. However, that is another matter. As the noble Lord, Lord Hanningfield, knows, it is difficult to progress any further. On that basis I will not press my amendment.

Earl Attlee: I am a little confused. Did the Minister say that 50,000 fixed penalties were issued against cyclists or that 50,000 fixed penalties were issued against motor car drivers using mobile phones?

Lord Davies of Oldham: I have spread confusion and I apologise to the noble Earl. The 50,000 fixed penalties to which I referred were for the number of prosecutions of drivers for failing to have full control of their vehicles. The offences may be related to mobile phones, but they also relate to other forms of losing control.

Earl Attlee: I know that the Minister cannot say how many of the penalties were issued to pedal cyclists for using mobile phones, but can he indicate the number of prosecutions or fixed penalties issued to cyclists at all?

Lord Davies of Oldham: I am sorry but I do not have the data that the noble Earl asks for with regard to cyclists. I will write to him.

Lord Berkeley: I will give my noble friend an opportunity to consider his reply before he decides to write. Would he agree that the recruitment of some 500 police in London who patrol on pedal cycles is a better way of enforcing some of these regulations? The police are on mountain bikes so they can pedal up steps such as at St Paul's Cathedral and also go quite fast. They are much more capable or apprehending those cyclists who do not obey the regulations—and, sadly, there are quite a few. There are a lot more cyclists anyway after the sad events in July, which is good for cycling and it is very important that they obey the regulations. I would be interested to hear whether anyone on a bicycle has been stopped and convicted of some of the offences that we have been talking about.

Lord Davies of Oldham: I am grateful to my noble friend for assisting in drafting the department's reply to the noble Earl, Lord Attlee. Of course we will discuss the issue further and all factors will be taken into account, including the ones that he identified. My noble friend is right about policemen on bicycles. As ever, police act as a deterrent and it is an advantage if they are well equipped to deal with particular offenders on the mode of travel that they are using.
	We are all concerned not only about the number of prosecutions that we can effect but the degree of improved road behaviour we can have through deterrence. My noble friend alluded to that factor. I am sorry that I am not able to satisfy either my noble friend or the rest of the House with statistics relating to the prosecution of cyclists. I will do my best to find out the information, but my best might not be very good.

Lord Hunt of Chesterton: It seems as though not many people have been arrested on a bicycle—I have been and have appeared in court in Cardiff, so it does happen.

Lord Davies of Oldham: One can always look to help from one's own Back Benches even in the direst extremes. I can now assert that I have moved from nought to one thanks to that kindly, genuine contribution from my noble friend. I thank him.

Lord Hanningfield: I am also pleased to hear that someone has actually been arrested on a cycle because it helps the Minister's arguments. We have to accept what he says. The problem is enforcement. One recognises that. On the other hand, there is a real problem. If this behaviour is not covered in legislation people, will think that they can get away with it. I am rather disappointed with the lack of guts of the Government in trying to put the proposals into legislation, even if there is a problem with enforcing them. However, I hear what everyone has said. I will think about the matter for the future but for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 94 to 98 not moved.]

Lord Hanningfield: moved Amendment No. 99:
	Page 23, line 42, at end insert "except in circumstances where a motor vehicle is stationary and the engine is switched off"

Lord Hanningfield: This is a common-sense amendment that I hope will appeal to all Members of the Committee. It makes clear that someone using a mobile phone in a stationary vehicle, with the engine switched off, would not be guilty of an offence. I am concerned that the present law, because of the wide definition of the expression "driving" in road traffic legislation, could mean that people who get stuck in long traffic jams, switch off their engines and communicate with others to inform them about a delay will, strictly speaking, be committing an offence. There was an important example recently when a senior social worker needed to get to a child support case. She was stuck in an accident for nearly an hour on the A12 and did not feel that she could use a mobile phone. That was a real problem for her because she was trying to support a child.
	The law is brought into disrepute if we allow offences to go on the statute book—which this one could have been if she had used a mobile phone—that everyone realises are absolute nonsense. The injustice is even greater when there is no power to mitigate the fixed penalties, as there is not for the proposed offence in question, which will result in a mandatory minimum three-point endorsement on a licence. I am sure that the Government did not intend to penalise motorists who are stuck in traffic jams or people who want to get somewhere to support other people. The way to ensure that they are not penalised is to amend the law and ensure that that is apparent in the statute. It is a simple point and I hope that the Government will accept my reasonable amendment. I beg to move.

Baroness Gardner of Parkes: I strongly support this amendment. It makes complete sense. People often need to call someone urgently and they can pull in and park—the cars will be stationary. The instance quoted—a traffic jam where an accident has held up the traffic—is a perfectly legitimate example and I support the amendment.

Earl Attlee: I support my noble friend, but the amendment does not go far enough. He describes the problem of being stuck in a traffic jam. If it is possible to warn the person you are meeting that you are going to be late, all the stress disappears. Even after you get out of the traffic jam, there is no need to race because the person knows that you will be late. Some flexibility is desirable here—perhaps CPS guidelines might be able to address this point.

Lord Berkeley: I would never expect anyone to be given a fixed penalty for using any type of mobile phone if the car is stationary with the engine switched off. I would find it extraordinary that anyone would disagree. However, in several recent cases legislation has been interpreted by the police in a way one might not have expected when debating it, so there is a lot to be said for the clarification that would come with this amendment. If the engine is switched off and you are therefore stationary—unless you are running away—that should not be an offence.

Lord Bradshaw: In answering the points that have been raised both by the noble Lord, Lord Hanningfield, and other noble Lords, will the Minister turn his mind to this question? When a driver is in charge of a car, does it mean that he is in the car with the keys in his pocket or that the car is stationary and the engine is switched off? In the case of drink-driving, he may well be considered in charge of the car and guilty if he is in the car with the keys. On the other hand, if he stops by the roadside or is in a traffic jam and turns off the engine, which he should do, it seems that some discretion should be exercisable on the part of the prosecuting authorities.

Earl Attlee: It may help the noble Lord if I point out that I believe that if you are near the car with the keys in your pocket, you are deemed to be drunk in charge of the car.

Lord Davies of Oldham: I am grateful to the noble Earl, Lord Attlee, for clearing up that matter. He is absolutely right. The keys do not have to be in one's pocket so far as drink driving offences are concerned. It is a question of proximity to the car and intent to use it. Therefore, in that area we have a very clear illustration of someone who may not even be immediately behind the wheel of a car but is responsible for it and can be charged with a serious breach of the law. That is why this debate is not really about driving. We do not have in law a definition of driving. The question when a driver is in charge of a vehicle has to be established as a fact before a court of law according to the evidence that is put before it at that time. We therefore cannot pretend that we have in law a concept of driving that enables us to introduce amendments of this kind. That is the difficulty.
	Let me point to the other obvious problem that impacts on this—the development of new technology. I would be sustaining the argument even without this new technology. Some cars are now designed so that their engines stop when the accelerator is not pressed and they are no longer going forward. Whereas some careful, economical drivers switch off their engines at level crossings because they know that two trains are expected, which will take several minutes to pass, and think that they are contributing to reducing global warning as a result, the fact is that you can be driving a car that will take that decision for you; it switches off the engine.
	Is it contended that because an engine is switched off, the driver is no longer in charge of the vehicle as far as the law is concerned? That would be the burden of these amendments. It would mean that it would not impact on the driver if the engine of his vehicle was not running. All the assertions by Members of the Committee who have stated how important it is to look at the question of mobile phones and their use while driving would have a coach and horses run through any part of our legislation in these terms, to say nothing of other aspects of potential bad driving, by the simple fact that if the driver could establish that the vehicle was stationary and the engine not actually running, he could not be caught by the law that would be in place if these amendments were accepted. We cannot go down that track, can we? We all recognise the virtues that some of the new technology may bring, both in the economical use of cars and the reduction in pollution emitted from them. We know that in the United States there is a very considerable drive towards increasing the development of such cars, and in this country we are seeing an increasing, although rather slower, use of them at the moment. I am happy to give way to the noble Lord.

Lord Hanningfield: I understand what the Minister is saying. But, unfortunately, we live in a country in which at least twice a week those of us who have to get around spend about quarter of an hour stationary in traffic jams, particularly if you live out of London in a county such as Essex. We have a whole group of people who have to get about to support other people. An ambulance with a flashing light will get through, but many people have to travel to support others. We are talking about not only saving lives on roads but saving lives generally. In my job in local government, I want to save children's lives and older persons' lives, which means supporting them at times. If people are stuck in traffic jams for quarter of an hour, half an hour, or sometimes an hour if there has been an accident ahead, they would be unable to inform others either to stand in for them or support the system, which would be totally wrong.
	In referring to cars that stop automatically, I think that the Minister is leading us up the garden path. I have been in a situation of having to get through a timetable of meetings and have not used a mobile phone. People do not like it if you are late. So there is a real problem for those of us who have to get round the country for very important matters such as saving lives and supporting other people.

Baroness Gardner of Parkes: If the Minister will allow me to intervene also, I would like to know more about these cars that stop automatically. I believe that that is a most terrifying thought. Many years ago I had a very famous British brand of car whose engine stopped automatically the moment a drop of rain hit the car. If you were on a motorway and the engine suddenly cut out in the middle of nowhere, it was quite terrifying. In considering road safety, we should think about when and where the so-called automatically stopping cars will stop, because I think that it sounds unbelievable, and it does not take away my very strong support for this amendment.

Lord Lyell of Markyate: Perhaps the Minister will reflect on this pointbefore Report, on the basis that one is looking at the mischief with which the legislation seeks to deal. With drunken driving and related offences, it is a very grave mischief to have the keys in your pocket and to intend to enter the car, and that should be quite sufficient. However, if you are in a car with a mobile phone, the mischief depends on what you seek to do and where you are. If, for example, you are stuck in a traffic jam, everyone is brought to a halt, you switch off the engine as a symbol that you do not intend to drive further at least until you have switched it on, and you then use a mobile phone for a sensible, humanitarian purpose, it seems to me that there is no mischief.
	Likewise, following the Minister's arguments, if you pull into the kerb, switch off the engine, put the keys in your pocket, which is what I do when I want to use a mobile phone, and then use it for whatever sensible or other purpose, I cannot see that any mischief is created. Three times in the past year, in a car with an electronically controlled engine, which can go wrong, I have had the engine die on me in the middle lane of the M1, in the rush hour, with traffic passing at 60 miles per hour. That is very frightening. If it were unlawful for me to use my mobile phone to alert the police and the rescue authorities in such a situation, it would be absolutely absurd. The car will not move. Consequently, it seems to me that there is some room for flexibility here, and I would ask the Minister to think further about it.

The Earl of Mar and Kellie: Listening to the debate so far causes me to ask the Minister whether at present the legislation is so written that it would be an offence to have a hand-held mobile phone switched on in one's pocket.

Lord Davies of Oldham: First, I attest the obvious—that I am no lawyer, and therefore these questions leave me gasping for air in terms of answers. I hear the suggestion made by the noble Lord, Lord Lyell, that we think about this debate before Report stage. We certainly think about these debates whenever a genuine controversy develops and arguments are presented that are worthy of consideration. This is one such occasion.
	The point I want to emphasise is that, as the noble Lord suggested, these issues require some flexibility because we are talking about prosecutions. Even the excellent illustration of whether one has the keys in one's pocket and how close one is to the car is a question of evidence before the court. If you are five miles away travelling home on a bus, as drunk as some people can be on such occasions, you are clearly not in control of a vehicle, although your vehicle may be stationary elsewhere. The police may have good reason to look into that. On the other hand, if you are in very close proximity to your car with the keys in your pocket, and the police are able to establish that there was a clear intention to drive—certainly, if you are sitting in the driving seat—you are in serious trouble. The judgment will be made on that basis.
	I sought to suggest that these matters need to be defined by the court. I tried to emphasise—as I sought to do with the previous group of amendments—that we do not define in statute the concept of driving. We define offences in statute but not the concept of driving because we cannot distinguish—to take the most obvious example—whether the engine has been switched off because the driver has suddenly become very ill, whether the driver has had too much alcohol or whether the engine has been switched off not by the driver but has automatically switched off. I hear what the noble and learned Lord said about advanced technology malfunctioning. We are all used to innovations not being perfect; in fact, I do not believe that any technical innovation has ever been perfect. Of course mishaps occur. However, there are increasing sales of vehicles with technical innovations because the technology is fairly secure. You would never sell a car if it continually demonstrated the fault to which the noble and learned Lord referred. The police will scarcely prosecute the noble and learned Lord for using his mobile phone to avoid a serious traffic incident obtaining. Of course this is a question of what the police define as an offence. All I seek to emphasise is that it is not easy to define.
	In moving the amendment the noble Lord, Lord Hanningfield, gave the excellent example of being stuck in an hour-long jam on a motorway and wanting to make a humanitarian call—I take it with the aim of helping other people rather than getting in contact with one's bookmaker or whatever—but how on earth are the police supposed to know whether it is a humanitarian call or a trivial one? A few moments ago we heard why the use of a telephone while driving might be extremely dangerous. How can we have a situation where someone says, "Because the vehicle is stationary it cannot under any circumstances be dangerous"? People can be in control of a stationary vehicle but constitute a real hazard to others. It depends where the vehicle has stopped. Given that we are concerned to maintain calmness and good order on our motorways, I venture to suggest that someone who is a little slow to get their car going again because he or she is busy talking on a mobile phone after the vehicle has been stationary for a while on the motorway will scarcely be conducive to good behaviour on the part of fellow drivers.
	I emphasise that there are hard cases but they make bad law. I certainly give the Committee an assurance that we shall look at this issue again but I emphasise that the concept we are addressing concerns not that of driving but of being in control of a vehicle. All kinds of new technologies make it absolutely clear that in a stationary car you do not have plenty of time in which to switch off the engine, relax completely and make the appropriate phone call. That is how the modern technology in some cars operates. However, if we accepted the noble Lord's amendment, we would drive a coach and horses through the legislation. Anyone who drove a car with the technical innovations that we have discussed could say, "At the moment when you allege that I committed an offence, the car was stationary and the engine was off, because when it is stationary, the engine is always off; therefore I cannot be guilty of the offence".
	I will reflect upon this important debate. I recognise the wealth of contributions that have been made to it. However, I hope the noble Lord will recognise that there is no way that I can accept the amendment as it stands. I believe that other Members of the Committee also have reservations about it. I hope, therefore, that the noble Lord will consider that we have had a constructive debate and that he will withdraw the amendment. We shall return to the matter.

Lord Bradshaw: Before the noble Lord, Lord Hanningfield, addresses those comments, I should say that I do not think that what the Minister said was good enough, although I listened to him very carefully. I believe that motorists need guidance. They have been told that they are not to use a mobile phone while driving and that they will incur penalty points if they do. I hope that motorists will be advised not to use a hands-free mobile phone while driving. However, at the same time you must tell motorists what they can do. It is a matter of what you cannot do and what you can do. I hope that any publicity that is issued tells motorists what is permissible. That has to be done whether it is done in law or in guidance. The noble Lord referred to leaving matters to the court to decide. I am not a lawyer either. However, I am not very keen that every time we discuss a difficult issue, whether it is using mobile phones while driving or dealing with terrorists, we should shuffle it off to the courts to let our learned friends spend huge sums of taxpayers' money deciding issues that we ought to decide here. I ask the Minister to reflect very carefully on the matter and return at Report with a form of words that will better satisfy noble Lords.

Earl Attlee: I draw the Minister's attention to the Highway Code when he reflects on the matter. If the Highway Code stated what constituted a reasonable call to be made while waiting in a traffic jam, that might be a helpful way of approaching the matter.

Lord Monson: If at the moment there is no distinction in law between being in charge of a vehicle and driving a vehicle, it is high time that there was. Perhaps the Minister might like to reflect on that before we reach the next stage.

Lord Davies of Oldham: I hope that I may respond briefly to that point before the noble Lord, Lord Hanningfield, speaks to his amendment. I take on board the points that have been made. However, the reasoning behind our present position is that being in control of the vehicle is the crucial issue which makes one responsible before the law. It is not a question of driving because the concept of driving is not defined in law. Being in control of the vehicle is the crucial matter. That is why under our drink-driving laws we are able—with, I am sure, the common agreement of all Members of the Committee—to insist that a person can be held culpable even if they have the keys of the vehicle but do not have the engine switched on because of the potential threat to wider society which can be attested by the court.
	Of course I accept that there may be a positive side to the matter. Inevitably, the law is there to identify what is not permissible. Through the Highway Code we could identify certain features enabling good behaviour to be interpreted in different ways. I shall have to reflect further on the matter. I certainly shall return to it. I recognise the strength of the debate. However, I hope that the Committee will recognise that we cannot accept the amendment. I hope that the noble Lord will withdraw it.

Lord Hanningfield: We have had an interesting debate. Generally, there seems to be a consensus in support of the thrust of what I am proposing if not the wording of the amendment. I know of cases where important meetings to discuss vulnerable children or elderly people have not taken place because those who were due to attend those meetings were not able to communicate a quick message that they could not reach the relevant meeting in time as they were stuck in a traffic jam. That is not a once-a-year experience; it is more than a once-a-week experience for people who live not necessarily in rural Essex but on the A12, A11, M11 or M25. At times you will be stuck for 20 minutes or so unable to move.
	Most people doing that are not out on a drinking spree or for leisure. A lot of people are doing valuable work and supporting the community. I met a Minister this morning—we were talking about vulnerable children—and I know that she would not want me to say "We cannot support half of the children because they are stuck in a traffic jam and cannot let people know where they are going to be". It is a part of joined-up government and supporting our society, in a way. Although we are talking about the Road Safety Bill, we have to have common sense and enable people to get on in supporting the community.
	I hope the Minister will do as he says, and review this very seriously before Report stage. I sensed there was a lot of support around the House for what I was trying to say. With that, however, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	Clause 21 agreed to.
	Clause 22 [Breach of duty to give information as to identity of driver etc.]:

Lord Hanningfield: moved Amendment No. 100:
	Page 24, line 38, leave out ""6"" and insert ""3 to 6""

Lord Hanningfield: My Lords, this is rather different from my last amendment, where I wanted to remove things from the courts. With this amendment I want to give something back to them.
	Clause 22 of Schedule 2 to the Road Traffic Offenders Act 1988 would make it mandatory to increase the number of penalty points from three to six for the offence of failing to provide information about the identity of a driver. We are concerned that such a move would severely reduce the discretion of the courts, as I have said. By simply moving from three to six points and giving the courts no discretion, and no ability to consider the circumstances of the case, means that injustices could occur.
	The amendment does not seek to require an ultra-lenient option—no-one wants to reduce the severity of these cases—but gives the courts the discretion to decide, in the circumstances of the case, whether they should give between three and six points. For example, we may be faced with a scenario where multiple drivers may use one vehicle—I am thinking of perhaps the Royal Mail, or one of the large utilities where it is possible that one vehicle is used by numerous persons during the course of a week, or even a single day. If an offence occurs and a request is subsequently issued to provide details of the driver, it may be difficult for the registered owner of the vehicle to be able clearly to identify which individual was driving the vehicle at the time the offence was committed.
	The amendment merely seeks to introduce an element of common sense and discretion to the courts, which would allow them the ability to set the number of penalty points to be awarded by taking other circumstances into consideration. I beg to move.

Viscount Simon: My Lords, I suspect that some of the vehicles that the noble Lord, Lord Hanningfield, refers to are HGVs, and a tachograph will therefore be applicable, which will record the driver at the time that the offence might have occurred. Notwithstanding that, however, the offence is "Breach of duty to give information as to the identity of a driver". That is an absolute offence. Six points is absolutely right.

Earl Attlee: My Lords, I rise to support my noble friend Lord Hanningfield and take a contrary view. Some discretion is required. Supposing an older brother, known to be violent, was actually the driver at the time, and the owner of the car declines to give the necessary information. He can pick up six points because he was scared of his brother. Some discretion would be appropriate for the courts. As the noble Viscount said, it is an absolute offence. In that case, however, the courts would say "OK, we can understand that. That is three points". It would still be a big deterrent.

Lord Lyell of Markyate: My Lords, will the Minister clarify what is actually involved in committing this offence? There seem to be two very different things involved. One might be a wilful refusal to give very important evidence to the court as to who the driver was, when the person who was asked for that information knew the answer. The other might be a piece of carelessness or mischance, whereby one is normally asked to give the information within six weeks or some reasonable period, and they simply fail to do it. They may have huge piles of letters, get in a muddle and subsequently realise that they have failed to do it. They have put the police and authorities to some trouble and they apologise. Maybe three points would be pretty salutary for that. There is no deliberate intention to commit the offence, whereas some deliberate withholding—which, if it could be proved, would probably be another offence in itself—in circumstances where there was some significant moral harm should get six points. Would the Minister consider that?

Lord Monson: My Lords, as one of the many non-lawyers here tonight, I ask the Minister whether it is still the case that, in law, husbands and wives cannot be compelled to testify against one another? If so, how does that affect this particular offence?

Viscount Goschen: My Lords, I ask the Minister what sanction is applicable in the case where the registered owner of a vehicle does not hold a driving licence and cannot therefore incur penalty points. It could be someone, for example, whose Rolls-Royce motor car was registered to them, and who had a number of people who could drive it for them. To whom are these points going to be applied in that case?

Lord Bradshaw: My Lords, I rise in this case to be a bit cautionary. A problem with discretion is that, when cases go to a magistrates' court, the penalties imposed by the magistrates in a wide range of road traffic offences are at the very lowest end of the scale. When I have been out with the police—I declare an interest as a member of the Thames Valley Police Authority—and a lorry has been stopped in a deplorable condition, the VOSA inspector has told me that if the case is taken to the magistrates' court the driver will probably be fined £200. At the time, that was a tenth of what was allowed, and was less than the cost of one tyre, when the whole set of tyres on the lorry needed to be changed.
	The fact is that many magistrates have no idea of the amount of trouble which people are causing. When somebody is required to name the driver at the time, very often the person who does not give that information is shielding a criminal. Some of them are very serious criminals, so they have a duty to tell the police who was in the vehicle.
	The week before last, I went out with an automatic vehicle registration detector. We had a huge number of drivers who were not the registered owner of the vehicle, or were uninsured, had not paid their tax, had not had an MOT, were engaged in crime or were carrying drugs. Is this amendment really designed, as I fear it is, to protect what one would call "the innocent motorist"; or is it, in fact, another obstacle in the police carrying out very serious duties which they have to do every day?
	It is essential that somebody who has a vehicle knows who is driving it. That—and we are coming on to it in a moment—constitutes an insured risk. The driver of the vehicle is the person who should be covered by insurance. The noble Earl, Lord Attlee, has referred to a driver of whom the registered owner is afraid. Is that person insured? Are they really allowing somebody who is known to be violent to drive their car while probably uninsured? There are many uninsured drivers now.
	I support the strength of this legislation, because it is a weapon which the police need to use. They must use it sparingly, and go to the person quite politely and ask them who was driving. It is only when they fail to get that information that they must start to turn up the pressure. The person does not get the penalty points overnight. It is a long, drawn-out process.

Lord Lyell: I am sorry to intervene before my noble friend. Indeed, my noble kinsman was, or is, learned, but where one Lyell comes along I hope that it is not the second Lyell who is causing trouble.
	I recall a high-profile case four years ago where a motor vehicle that was owned, I presume, by a company or corporation was noted committing an offence. Representatives of the corporation, as the registered owner of the vehicle, came to the magistrates' court, and for one reason or another said that they did not know who was driving. I am not too sure who would pick up the penalty points if the police said that the vehicle was involved in an offence—I think it was in breach of the speed limit. As I recall, that corporation could not pick up the penalty points, but there was a clear breach. Yet the registered owners—a corporation—escaped. There was no one responsible person who picked up the penalty points.
	I may be able to have a word with the noble Lord outside, because otherwise perhaps even in your Lordships' House there is a law of libel. I recall that it was a high-profile case in the north-west of England. It was curious to me how an offence could be committed and the registered owners—being a corporation or corporate body—could say "We do not know who was driving", and no one was penalised. I can go and look it up.

Earl Attlee: I regret that I have identified another difficulty with having a mandatory six points. Let us suppose that I have fouled up and not told the authorities who was driving the vehicle and I collect six points. I would automatically fight like hell in the courts. If I was only going to get three points, I would take the rap, but at six points I could not afford to be half-way towards losing my driving licence.

Viscount Simon: Would the noble Earl fight like mad if he already had nine points on his licence?

Lord Davies of Oldham: Again, it has been a debate of some complexity. First, let me reassure the noble Lord, Lord Lyell, on that question of against whom the legislation is directed and whether there is any scope for inadvertence. There certainly is. Section 172(4) of the Road Traffic Act provides a defence where the person did not know who was driving and could not with reasonable diligence have ascertained who the driver of the vehicle was. That is a proper defence. There is scope for exception in what we would regard as unusual circumstances. In most circumstances that we are dealing with, the driver is known. Let me reassure the noble Lord, Lord Monson, that there are no exemptions. If a husband is driving the wife's car, his good lady is obliged to supply that information, and he incurs the penalty points if he is guilty of the offence.
	Let me emphasise what we are seeking to achieve here. We are not seeking to be punitive for its own sake and up-rate from three to six points just because that affects people more adversely. We are trying to deal with a situation where someone tells an untruth about who was driving and in doing so incurs three penalty points where, if the truth was known—namely that he was driving—he would collect six. So it is an incentive to him to lie to the court, because at present the penalty for the vehicle-keeper who claimed that he did not know who the driver was would only be three points, when the offence merits six points.
	Of course it is reasonable for us to close that gap. It cannot be the case that we would countenance a position in law where by lying a person effectively defends themselves against a more serious sentence. The Bill ensures that the penalty is six points, but the amendment would create a position where someone would be advantaged if they carried out that activity. That is what we are trying to deal with, and that is the major basis on which I resist the amendment.

Lord Lyell of Markyate: I am grateful to the Minister. I had not intended to make exactly that point; it is complex. Could this be carefully thought about in the department before Report? The circumstances that worry me are rather different. I am concerned that such requests for information on the driver normally arrive by post. In less than perfectly organised households and government departments, things that arrive by post sometimes lie a long time unanswered. Often it is not deliberate, but a slip. If there is a perfectly innocent mistake and no reply is forthcoming can the Minister assure the House that the penalty will not apply? I think that it does.
	Can he clarify it—should there not be, and is there not, a difference between something that happens through complete inadvertence and something that happens through deliberate withholding of information, or worse still the giving of dishonest information? I have had to read the form recently, and it says clearly that anyone who knowingly gives false information commits a different and much more serious offence, which would rightly be dealt with seriously, even to the extent of perverting the course of justice. There is a lot to look into here, and those of us who are showing concern are anxious that the courts should be able to show some distinction between innocent carelessness and guilty wrongdoing.

Baroness Gardner of Parkes: On that last point, when I used to sit as a magistrate, I understood that where no reply was received the police regularly went round to the address and asked, "Why have we not had a reply?". Likewise, when the cases came before court there was an opportunity to produce proof. If recorded delivery had been used you could then establish whether something had been delivered and by whom.
	What is more worrying and is not covered in the Bill is the number of people who have an accident, run away leaving their car and then phone the police and say that the car was stolen. That happened to me, and I was able to identify the person because I was sitting in my house when they crashed into my car outside the house. Due to a slip-up in the police identity parade the fellow got off completely, when I knew very well that he was the driver of the vehicle at the time and he had reported the car stolen after the event. There should be something to cover those strange occasions that are reported as thefts after accidents rather than before.

Viscount Simon: The noble and learned Lord, Lord Lyell of Markyate, has drawn attention to the innocent victim. As the noble Baroness, Lady Gardner of Parkes, said, the police do go round and not only that, they send reminders about the form. Therefore, if it can be ignored once it is unlikely to be able to be ignored twice.

Earl Attlee: In the Minister's reply, he suggested that the problem was people who are misleading or lying to the police. Section 172 of the Road Traffic Act 1988 says:
	"Failure of person keeping vehicle and others to give the police information as to the identity of the driver".
	The noble Lord should take great note of my noble and learned friend Lord Lyell, who pointed to the possibility of a charge of perverting the course of justice, which we know is a very serious offence indeed.

Lord Davies of Oldham: I recognise the strength of that last point, but that would be a different legal proceeding indeed, about a different case. We are seeking to deal with the perverse incentive here, whereby a vehicle is being driven in such a way that it would merit six penalty points. That is the offence that is being committed and that is what the driver of that vehicle will incur.
	We are seeking to avoid the perverse incentive whereby the person who was driving that vehicle is able to evade the six penalty points by saying, "I do not know who was driving" and then the penalty is only three points. I maintain that it is right that in circumstances where, at the present time, that perverse incentive exists, it should be removed. I take on board all the many points about the operation of the law and justice in this country and the question of whether the information has been received and whether the person had a proper chance to respond to it. All that takes place properly before the magistrates in circumstances where the defence is that there has been some problem with understanding what they were meant to comply with. But those are extraneous matters.
	We are dealing, simply and straightforwardly, with a situation where, at present, there is this incentive for someone to conceal who the driver was because they only incur three points in doing so where in fact they would get six points if they identified who it was. That is something which must be recognised as in breach and the noble Lord's amendment would reinstate that perverse and totally unacceptable incentive.

Earl Attlee: Surely in the circumstances that the Minister described the magistrates would award six points?

Lord Lyell of Markyate: I apologise for coming in again, but the Minister makes a point that it is in a case of obvious and serious wrongdoing that the six points would be imposed. The Bill is so drafted that it refers only to a duty to give information as to the identity of the driver, and is drafted in a way which could cover the position that he is concerned about, where there is an incentive, but could equally well cover the innocent circumstance that I referred to.
	I agree with the noble Lord that in the best world—and it sometimes is the best world—the police do come round and give you a second chance and consequently the situation does not arise unless you are dishonest. But we have an automatic penalty of quite a serious nature in practice in circumstances which can cover both wrongdoing and innocent carelessness. That is the danger of automatic penalties and I ask the Minister to invite the department to think again.

Viscount Goschen: I am not quite sure whether the Minister has finished his remarks, but could he answer the point raised by my noble friend Lord Lyell and myself: what if the person who is not disclosing the information is either someone who does not hold the driving licence or a body corporate? While he is about it—the noble Lord talks about the perverse incentive—what if the offence was someone driving 150 miles per hour along a motorway, for which a court would ban a driver automatically. Surely the six points then becomes too low. I am just concerned about where the six comes from.

Lord Davies of Oldham: We are entering into other areas of law, but the noble Lord will recognise that of course we have defences against a situation where somebody commits an offence of even greater severity than the one we are describing—six points—and the corporation says, "well we own the car, but we haven't the faintest who the driver was". For all sorts of reasons that would not be an acceptable position and corporations are expected to know who their drivers are and are likely to find themselves in difficulty if they maintain that they happen to employ 5,000 drivers and have little idea who is driving a vehicle they own. That clearly is not a situation that obtains in this country at the present time. No self-respecting organisation would dream of finding itself in that position and we have all sorts of ways of ensuring that that is so.
	We are dealing here with the penalty points sent to the owner of the vehicle. It is quite clear that at the present time that person has the perverse incentive to get away with three points, when it is clear that the penalty for failing to provide the information must be consistent with the penalty that would have been incurred if the person had been identified.

Viscount Goschen: The noble Lord makes a fine point, but it is not the one I raised. What if the person who declines to provide the information does not have a driving licence? Points cannot be applied to a person who does not have, or has never had, a driving licence. What if that person is a body corporate? How do you put points on the licence of BP or Shell? It must be to an individual. That is the point that I am making.

Viscount Simon: I wonder if I can help my noble friend. It is something that I have no knowledge of at all, but it may be relevant: if you have a body corporate with 5,000 cars or vehicles, would it not tend to concentrate the mind of the company secretary if he knew that he was going to have the points applied to his licence?

Lord Lyell: The chairman?

Viscount Simon: Yes, the chairman.

Baroness Gardner of Parkes: When I was a magistrate we gave people penalty points even if they did not have a licence. Those points would all come into force if, or when, they ever applied for a licence. But if they never applied for a licence, then I agree with my noble friend that it is absolutely pointless giving them points.

Lord Davies of Oldham: That is so and that is an obvious situation. You cannot penalise by penalty points those who never intend to drive. But I can assure the noble Lord that we certainly do not have a situation where a company can present a defence in the courts saying, "it is impossible for us to reply to the question of who was driving that vehicle because we have not the faintest idea". Otherwise one would envisage that it would be the case that every business driver in the country would take advantage of the ability of his employers to get him out of this particular problem. That is clearly not the case. Companies act responsibly. They need to for insurance purposes—all sorts of things can happen to the vehicle—they certainly do need to know who is driving. It does not matter how large the company and how many vehicles they have—they know.
	It is not companies that we are seeking to attack here. The problem is not that we have got thousands of these notices out and companies are tearing them up and throwing them in the bin because the chairman is not likely to incur any particular difficulty because the chauffeur always takes him to his place of work in any case and he does not drive. That is not the issue. We are dealing with a situation where somebody—the owner of the vehicle—has committed the offence themselves and can get a reduced sentence by not supplying the information where they only get three points but will get six if they supply the information. That is clearly something that needs to be remedied. If the noble Lord's amendment was sustained—whatever the arguments backing it—that is what would continue and I am sure that the House would recognise the folly of that course of action.

Lord Hanningfield: Without wishing to bring this one to an end, we have had a very interesting debate. I said right at the beginning that no one wanted to do anything to permit the award of the maximum number of points to anyone who had really committed an offence that deserved it. My noble friend Lord Lyell summed it up well when he said that when you put a mandatory six points, are we sure that we are not sometimes going to catch the innocent? That is something that this debate has been going around and around. I hope that the Minister will take advice and reflect on the matter. I repeat that no one—certainly on these Benches—wants to stop someone who actually breaks the law and deserves six points getting them. We want to make certain that there be no miscarriages of justice in any way by having the mandatory six points. I repeat that I hope that there can be some reflection on and discussion about our debate for the future. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 22 agreed to.

Lord Davies of Oldham: moved Amendment No. 100A:
	After Clause 22, insert the following new clause—
	"OFFENCE OF KEEPING VEHICLE WHICH DOES NOT MEET INSURANCE REQUIREMENTS
	(1) In the Road Traffic Act 1988 (c. 52), after section 144 insert—
	"144A OFFENCE OF KEEPING VEHICLE WHICH DOES NOT MEET INSURANCE REQUIREMENTS
	(1) If a motor vehicle registered under the Vehicle Excise and Registration Act 1994 does not meet the insurance requirements, the person in whose name the vehicle is registered is guilty of an offence.
	(2) For the purposes of this section a vehicle meets the insurance requirements if—
	(a) it is covered by a such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and
	(b) either of the following conditions is satisfied.
	(3) The first condition is that the policy or security, or the certificate of insurance or security which relates to it, identifies the vehicle by its registration mark as a vehicle which is covered by the policy or security.
	(4) The second condition is that the vehicle is covered by the policy or security because—
	(a) the policy or security covers any vehicle, or any vehicle of a particular description, the owner of which is a person named in the policy or security or in the certificate of insurance or security which relates to it, and
	(b) the vehicle is owned by that person.
	(5) For the purposes of this section a vehicle is covered by a policy of insurance or security if the policy of insurance or security is in force in relation to the use of the vehicle.
	144B EXCEPTIONS TO SECTION 144A OFFENCE
	(1) A person ("the registered keeper") in whose name a vehicle which does not meet the insurance requirements is registered at any particular time ("the relevant time") does not commit an offence under section 144A of this Act at that time if any of the following conditions are satisfied.
	(2) The first condition is that at the relevant time the vehicle is owned as described—
	(a) in subsection (1) of section 144 of this Act, or
	(b) in paragraph (a), (b), (da), (db), (dc) or (g) of subsection (2) of that section,
	(whether or not at the relevant time it is being driven as described in that provision).
	(3) The second condition is that at the relevant time the vehicle is owned with the intention that it should be used as described in paragraph (c), (d), (e) or (f) of section 144(2) of this Act.
	(4) The third condition is that the registered keeper—
	(a) is not at the relevant time the person keeping the vehicle, and
	(b) if previously he was the person keeping the vehicle, he has by the relevant time complied with any requirements under subsection (7)(a) below that he is required to have complied with by the relevant or any earlier time.
	(5) The fourth condition is that—
	(a) the registered keeper is at the relevant time the person keeping the vehicle,
	(b) at the relevant time the vehicle is not used on a road or other public place, and
	(c) the registered keeper has by the relevant time complied with any requirements under subsection (7)(a) below that he is required to have complied with by the relevant or any earlier time.
	(6) The fifth condition is that—
	(a) the vehicle has been stolen before the relevant time,
	(b) the vehicle has not been recovered by the relevant time, and
	(c) any requirements under subsection (7)(b) below that, in connection with the theft, are required to have been complied with by the relevant or any earlier time have been complied with by the relevant time.
	(7) Regulations may make provision—
	(a) for the purposes of subsection (4)(b) and (5)(c) above, requiring a person in whose name a vehicle is registered to furnish such particulars and make such declarations as may be prescribed, and to do so at such times and in such manner as may be prescribed, and
	(b) for the purposes of subsection (6)(c) above, as to the persons to whom, the times at which and the manner in which the theft of a vehicle is to be notified.
	(8) Regulations may make provision amending this section for the purpose of providing for further exceptions to section 144A of this Act (or varying or revoking any such further exceptions).
	(9) A person accused of an offence under section 144A of this Act is not entitled to the benefit of an exception conferred by or under this section unless evidence is adduced that is sufficient to raise an issue with respect to that exception; but where evidence is so adduced it is for the prosecution to prove beyond reasonable doubt that the exception does not apply.
	144C FIXED PENALTY NOTICES
	(1) Where on any occasion the Secretary of State has reason to believe that a person has committed an offence under section 144A of this Act, the Secretary of State may give the person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty to the Secretary of State.
	(2) Where a person is given a notice under this section in respect of an offence under section 144A of this Act—
	(a) no proceedings may be instituted for that offence before the end of the period of 21 days following the date of the notice, and
	(b) he may not be convicted of that offence if he pays the fixed penalty before the end of that period.
	(3) A notice under this section must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.
	(4) A notice under this section must also state—
	(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence,
	(b) the amount of the fixed penalty, and
	(c) the person to whom and the address at which the fixed penalty may be paid.
	(5) Without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise) to the person mentioned in subsection (4)(c) above at the address so mentioned.
	(6) Where a letter is sent in accordance with subsection (5) above payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
	(7) Regulations may make provision as to any matter incidental to the operation of this section, and in particular—
	(a) as to the form of a notice under this section,
	(b) as to the information to be provided in such a notice by virtue of this section, and
	(c) as to any further information to be provided in a such notice.
	(8) The fixed penalty payable under this section is, subject to subsection (9) below, £100.
	(9) Regulations may substitute a different amount for the amount for the time being specified in subsection (8) above.
	(10) Regulations may make provision for treating a fixed penalty payable under this section as having been paid if a lesser amount is paid before the end of a prescribed period.
	(11) In any proceedings a certificate which—
	(a) purports to be signed by or on behalf of the Secretary of State, and
	(b) states that payment of a fixed penalty was or was not received by a date specified in the certificate,
	is evidence of the facts stated.
	144D SECTION 144A OFFENCE: SUPPLEMENTARY
	(1) Schedule 2A makes provision about the immobilisation of vehicles as regards which it appears that an offence under section 144A of this Act is being committed and about their removal and disposal.
	(2) A person authorised by the Secretary of State for the purposes of this subsection may on behalf of the Secretary of State conduct and appear in any proceedings by or against the Secretary of State in connection with the enforcement of an offence under section 144A of this Act or under regulations made under section 160 of this Act by virtue of Schedule 2A to this Act—
	(a) in England and Wales, in a magistrates' court, and
	(b) in Scotland, in any court other than the High Court of Justiciary or the Court of Session."
	(2) Before section 160 of the Road Traffic Act 1988 (c. 52) insert—
	"159A DISCLOSURE OF INFORMATION
	(1) Regulations may make provision for and in connection with requiring MIIC to make information available to any prescribed person for the purposes of the exercise of any of that person's functions in connection with the enforcement of an offence under this Part of this Act or under regulations made under section 160 of this Act.
	(2) In this section—
	"MIIC" means the Motor Insurers' Information Centre (a company limited by guarantee and incorporated under the Companies Act 1985 on 8th December 1998), and
	"information" means information held in any form."
	(3) After Schedule 2 to that Act insert the Schedule 2A set out in Schedule (New Schedule 2A to the Road Traffic Act 1988) to this Act.
	(4) In section 91(a) of the Road Traffic Offenders Act 1988 (c. 53) (penalty for breach of regulations: application to regulations under Road Traffic Act 1988 (c. 52)) after "132" insert "or under section 160 by virtue of Schedule 2A".
	(5) In Schedule 1 to that Act (offences to which certain sections apply), after the entry relating to section 143 of the Road Traffic Act 1988 (c. 52) insert—
	
		
			 "RTA section 144A Keeping vehicle which does not meet insurance requirements. Sections 6, 11 and 12(1) of this Act." 
		
	
	(6) Part 1 of Schedule 2 to that Act (prosecution and punishment of offences: offences under the Traffic Acts) is amended as follows.
	(7) After the entry relating to section 143 of the Road Traffic Act 1988 (c. 52) insert—
	
		
			 "RTA section 144A Keeping vehicle which does not meet insurance requirements. Summarily. Level 3 on the standard scale." " 
		
	
	(8) After the entry relating to section 154 of the Road Traffic Act 1988 (c. 52) insert—
	
		
			 "Regulations under RTA section 160 made by virtue of paragraph 2(1) of Schedule 2A. Contravention of provision of regulations (which is declared by regulations to be an offence) prohibiting removal of or interference with immobilisation notice. Summarily. Level 2 on the standard scale. 
			 Regulations under RTA section 160 made by virtue of paragraph 2(2) of Schedule 2A. Contravention of provision of regulations (which is declared by regulations to be an offence) prohibiting removal or attempted removal of immobilisation device. Summarily. Level 3 on the standard scale. 
			 Regulations under RTA section 160 made by virtue of paragraph 2(3) of Schedule 2A. Contravention of provision of regulations (which is declared by regulations to be an offence) about display of disabled person's badge. Summarily. Level 3 on the standard scale. 
			 Regulations under RTA section 160 made by virtue of paragraph 2(4) of Schedule 2A. Contravention of provision of regulations (which is declared by regulations to be an offence) prohibiting making of false or misleading declaration to secure lease of vehicle from immobilisation device. (a) Summarily.(b) On indictment. (a) The statutory maximum.(b)   2 years or a fine or both. 
			 Regulations under RTA section 160 made by virtue of paragraph 4 of Schedule 2A. Contravention of provision of regulations (which is declared by regulations to be an offence) prohibiting making of false or misleading declaration to secure possession of vehicle in person's custody. (a)   Summarily.(b)   On indictment. (a)   The statutory maximum.(b)   2 years or a fine or both   ""

Lord Davies of Oldham: In moving Amendment No. 100A, I shall speak also to Amendment No. 122A. There are other amendments in the group to which Members of the Committee will speak in due course.
	Uninsured driving is a serious offence. We estimate that there could be 2 million motorists on our roads driving without insurance. The repercussions for those involved in accidents with uninsured motorists are very serious. It costs honest motorists around £30 a year extra on their premiums to meet the costs of uninsured driving. Last year, we announced a package of measures to crack down on uninsured driving following the recommendations of Professor David Greenaway, who carried out a review of motor insurance in the UK. That included, among other measures, a new offence of being the registered keeper of a vehicle which does not have insurance. We have consulted widely on that proposal and it was generally welcomed. Consequently, we are taking this opportunity to introduce amendments to this effect into the Bill today.
	Amendment No. 100A therefore introduces a new offence into Part VI of the Road Traffic Act 1988 of being the registered keeper of a vehicle the use of which is not insured. Amendment No. 122A inserts a new Schedule 2A into the Road Traffic Act 1988 which will enable the enforcement agency to immobilise vehicles by wheel clamping, and remove and dispose of them on reasonable suspicion that the new offence is being committed. To avoid the offence, registered keepers will need to have either the registration number of their vehicle or the vehicle's owner named in the policy of insurance or security. Identification of offenders will be done from the record, ensuring consistency of approach, and also certainty—if you offend, you will be penalised. We already have a similar measure on vehicle excise duty, which has contributed to a reduction in evasion from 4.8 per cent to 3.4 per cent. The Committee will welcome those figures; I know that noble Lords will be satisfied only when they are down to 0 per cent, but there has been an improvement with regard to vehicle excise duty evasion. It represents a saving of £77 million per annum and 700,000 fewer untaxed vehicles on the road.
	Those vehicles being kept off-road for good reason that have no need for insurance cover will be exempt so long as statutory off-road notice declaration has been made. Other exemptions will apply where the registered keeper has transferred the vehicle to another keeper, or the vehicle has been stolen and the registered keeper has complied with any prescribed requirements. Also excluded from the offence are vehicles currently exempt from the insurance requirements in Part VI of the Road Traffic Act 1988. Those include vehicles owned by authorities such as the police, the National Health Service and others.
	If the vehicle is neither insured nor formally declared off-road, or if none of the other exemptions apply, the offence will attract a fixed penalty of £100. The offender has 21 days in which to pay the fixed penalty, during which no criminal proceedings can be instituted. The amount of the fixed penalty can be varied by regulation, and regulations can also prescribe a lower amount to be paid if settled promptly. New powers will enable the enforcement authority to enforce effectively from the record. The amendments will allow the Secretary of State to make regulations requiring the Motor Insurers' Information Centre to disclose information to any prescribed person in connection with the enforcement of offences under Part VI of the Road Traffic Act 1988, including the new offence of being the registered keeper of a vehicle without insurance.
	The scheme will involve the enforcement agency running a regular exercise to compare the vehicles register against the motor insurance database, to identify those vehicles apparently uninsured. We expect the enforcement agency initially to send a warning letter, and if no remedial action is taken the keeper will receive the fixed penalty notice. However, there are a number of persistent evaders who will ignore warning letters and fixed penalty notices. If an evader does not pay a penalty within 21 days, he or she is liable to summary prosecution and a fine of up to £1,000. Also, to ensure that we are able to tackle those persistent evaders efficiently and effectively, the new powers in Amendment No. 122A will enable the enforcement agency to clamp and, in appropriate circumstances, dispose of uninsured vehicles. Very similar powers have been introduced for vehicle excise duty evasion and have proved successful. Amendment No. 122A therefore enables regulations to be made so that the enforcement authority can exercise the powers where it reasonably believes that the new offence has been committed, and regardless of whether criminal proceedings have been brought.
	The regulations may provide that owners will be able to secure the release of their vehicle before disposal on payment of a fee, and evidence both that the registered keeper will not be guilty of the new offence of having an uninsured vehicle and that the person driving away the vehicle will not himself be guilty of using a vehicle without insurance under Section 143 of the Road Traffic Act 1988. We expect the regulations to enable the keeper to recover his vehicle at no cost if he can show proof that he had, and continues to have, the necessary insurance. The regulations may also provide that a person is guilty of an offence if he interferes with a clamping device or makes a false declaration with a view to securing the release of a vehicle. The penalties on summary conviction are up to £500 for unauthorised interference of a clamping device, or up to £1,000 for removal or attempted removal of such a device. Making a false declaration attracts the statutory maximum fine on summary conviction or, on indictment, two years or a fine or both.
	Under regulations, the Motor Insurers' Information Centre may be required to disclose information for the enforcement of offences relating to clamping and disposal of vehicles under the new Schedule 2A. That new measure to tackle insurance evasion will benefit not only the victims of those driving uninsured, but all motorists. I note that Members of the Committee have tabled Amendment No. 159, which has similar aims. However, I hope that they will feel able in the light of my comments to accept my Amendments Nos. 100A and 122A and not move Amendment No. 159. However, I shall wait on that amendment being spoken to. On that basis, I commend Amendment No. 100A to the Committee. I beg to move.

Earl Attlee: I tabled Amendment No. 169A, which is in the group. I am grateful for the Minister's explanation of his amendment, and I am sure that all Members of the Committee will support it in principle. My amendment builds on his by seeking to ensure that, when a vehicle excise licence is issued, the MIIC database is checked to ensure that the vehicle or operator really is currently insured. I have to be honest and admit that my amendment was tabled months before his.
	Presently, two types of fraud can be readily employed. The first is the good old-fashioned forgery. There is nothing special about an insurance certificate apart from its cost—in some cases, well over £1,000 for a car. The second is to use a certificate that is genuine but no longer valid, perhaps because only one instalment on the payment scheme has been made or the policy has been cancelled for some other reason. The MIIC will surely be informed immediately such a policy is cancelled. If my amendment or something similar were agreed to, it would be very much more difficult to tax a vehicle that was not properly insured.

Baroness Gardner of Parkes: My Amendment No. 137 is not part of this group, but it should be because it is on exactly the same subject. As in the case of the amendment tabled by my noble friend Lord Attlee, it has been superseded by the government amendment. For that reason, I shall not move it when we reach that point.
	I welcome the government amendment because my amendment was intended to ensure some way of displaying proof that people were insured. It has weak points. As pointed out by my noble friend, people could cancel their insurance but they would still have something to show that it had been paid for. I believe that such weaknesses have been overcome in the government amendment.
	I particularly like the Minister's point that the penalty could be up to £1,000. Until the penalty is significantly more than the cost of insurance, unreliable, dishonest people will not bother to insure. They will say that it is a bit of a gamble as the fine will be so small that it is not worth paying the insurance. That is the major driving force behind people failing to insure their vehicles. I welcome the fact that a solid amount is being proposed for persistent offenders. I hope that they will stop persisting and that everyone will have insurance. It is so unfair to other drivers as it pushes up all drivers' insurance costs. We all have to meet the costs through various insurance associations for accidents when no one is insured.

Earl Attlee: I emphasise that my amendment builds on the Minister's amendment; it does not replace it. I hope that the Minister will tell me that my amendment is unnecessary.

Lord Bradshaw: I very much welcome the amendment, but it has some weaknesses. When I was out with the police 10 days ago they told me, "Round here they are very quick at releasing clamped vehicles—like, in minutes". People have keys to release cars quickly. The police clamp vehicles and quickly remove them to a pound. It costs £200 and the production of a valid tax disc, insurance and MoT test certificate to get the vehicles back. Is a fixed penalty of £100 a realistic fee to charge if a vehicle needs clamping? It is likely that the vehicle driver will be guilty of other offences besides not being insured. We must have regard to the fact that it costs a lot both to detect vehicles and to take them to a pound, which is often quite a long way away. In all cases the fixed penalty and the fine system should ensure that the reasonable costs of the authorities shall be met for taking vehicles away. The only reason why the exercise in which I took part ended was that the cells were full, and we had already taken seven vehicles to the pound. We had to stop because there was no more room. That is the reality.
	Many people driving untaxed and uninsured cars are young people on low incomes. One has to be careful that there is adequate public transport in those areas because there is the problem that people must get about. The cost of insurance for a young person is very high and often very much more than the cost of the car they buy. That is for the minimal insurance cover that people often have. I welcome what the Minister said—it is almost overdue—but will he reflect on the amount of the penalties, and make some inquiries of the enforcement authorities of what their costs really are in dealing with those people to ensure that the penalty meets the crime, to paraphrase Gilbert and Sullivan?

Viscount Simon: I am tickled pink by what the noble Lord, Lord Bradshaw, has just said. Removal to a pound almost immediately fits the bill. I would add that if a third party collects the vehicle he should have to prove that it is still insured, that he has a driving licence and that all the documents are in place.

Lord Davies of Oldham: I am grateful for all contributions to the debate. They recognise that the Government are intent on tackling a serious problem. We need to look further at one or two details. I want to reassure the Committee that fines can be varied by statutory instrument, so variations can be made as the scheme develops. As suggested in Amendment No. 169A, which was tabled by the noble Earl, Lord Attlee, we shall certainly look at the checks required to release vehicles as details of the scheme are developed. We recognise the point that the noble Earl was making. I am grateful also to the noble Baroness, Lady Gardner, for her contribution.
	The noble Earl, Lord Attlee, deserves credit for having tabled his amendment in advance of the government amendment. It was of great help as it enabled us to take the thrust and intent of his amendment into account. If there are outstanding details, I shall be happy to discuss them with the noble Earl after the Committee stage. Broadly, the House recognises that this is long overdue. We need to tackle the problem, while bearing in mind the point made by the noble Lord, Lord Bradshaw, that in penalising the uninsured, a disproportionate number are likely to have bought inexpensive cars and will have great difficulty in meeting the costs of insurance. We all know the wider cost for society and for individuals within it caused by the problem of uninsured drivers. That is why we feel justified in introducing the scheme in this Bill. I am grateful for the support that it has been given.

Earl Attlee: I am not confident that the Minister has answered my point. I am concerned that it is currently possible to tax a vehicle even though a motorist does not have genuine documents. Will the Minister's new system combat that?

Lord Davies of Oldham: I emphasise that checks will be in place to ensure that vehicles on the road are insured. The checking mechanism will deal with the insurance issue, so we do not need an additional aspect. I recognise that in the past the noble Earl's point would have been entirely valid. We did not have the ability to check on insurance, and the issue of vehicle excise duty was the only occasion when such a document emerged. This scheme stands alone. I might add that through our new technology the authorities will be able to determine whether a vehicle has registered on the data bank for appropriate insurance. A check can be made on that basis.

On Question, amendment agreed to.
	[Amendment No. 101 not moved.]

Earl Attlee: moved Amendment No. 102:
	Before Clause 23, insert the following new clause—
	"REQUIREMENT FOR ATTENDANCE ON COURSE
	(1) The Road Traffic Offenders Act 1988 (c. 53) is amended as follows.
	(2) After section 28 insert—
	"28A REQUIREMENT FOR ATTENDANCE ON COURSE
	(1) This section applies where—
	(a) a person is convicted of a specified offence by or before a court,
	(b) penalty points are to be attributed to the offence and the court does not order him to be disqualified, and
	(c) at least three penalty points are to be taken into account on the occasion of the conviction.
	(2) In this section "specified offence" means—
	(a) an offence under section 3 of the Road Traffic Act 1988 (careless, and inconsiderate, driving),
	(b) an offence under section 36 of that Act (failing to comply with traffic signs),
	(c) an offence under section 17(4) of the Road Traffic Regulation Act 1984 (use of special road contrary to scheme or regulations) or
	(d) an offence under section 89(1) of that Act (exceeding speed limit).
	(3) But the Secretary of State may by regulations amend subsection (2) above by adding other offences or removing offences.
	(4) Where this section applies, the court may make an order that the offender be disqualified if, within the period of twelve months beginning with the date of the order, the offender does not complete an approved course specified in the order.
	(5) In subsection (4) above "an approved course" means a course approved by the appropriate national authority for the purposes of this section in relation to the description of offence of which the offender is convicted.
	(6) A court shall not make an order under this section in the case of an offender unless—
	(a) the offender holds a valid United Kingdom driving licence,
	(b) the offender appears to the court to be of or over the age of 17,
	(c) the court has informed the offender (orally or in writing and in ordinary language) of the effect of the order and of the amount of the fees which he is required to pay for the course and when he must pay them, and
	(d) the offender has agreed that the order should be made.
	28B CERTIFICATES OF COMPLETION OF COURSES
	(1) An offender shall be regarded for the purposes of section 28A of this Act as having completed a course satisfactorily if (and only if) a certificate that he has done so is received by the proper officer of the supervising court.
	(2) A course provider must give a certificate under subsection (1) above to the offender not later than fourteen days after the date specified in the order as the latest date for the completion of the course unless the offender—
	(a) fails to make due payment of fees for the course,
	(b) fails to attend the course in accordance with the course provider's reasonable instructions, or
	(c) fails to comply with any other reasonable requirement of the course provider.
	(3) A certificate under subsection (1) above is to be given by the course provider and shall be in such form, and contain such particulars, as may be prescribed by, or determined in accordance with, regulations made by the appropriate national authority.
	(4) Where a course provider decides not to give a certificate under subsection (1) above to the offender, he shall give written notice of the decision to the offender as soon as possible, and in any event not later than fourteen days after the date specified in the order as the latest date for completion of the course.
	(5) If fourteen days after the date specified in the order as the latest date for completion of the course the course provider has given neither the certificate under subsection (1) above nor a notice under subsection (4) above, the offender may, within such period as may be prescribed by rules of court, apply to the supervising court, or (if the supervising court is not the Crown Court, the High Court of Justiciary or the relevant local court) to either the supervising court or the relevant local court, for a declaration that the course provider is in default.
	(6) If the court grants the application, section 28A of this Act shall have effect as if the certificate had been duly received by the proper officer of the supervising court.
	(7) A notice under subsection (4) above shall specify the ground on which it is given; and the appropriate national authority may by regulations make provision as to the form of notices under that subsection and as to the circumstances in which they are to be treated as given.
	(8) Where the proper office of a court receives a certificate under subsection (1) above, or a court grants an application under subsection (5) above, the proper officer or court must send notice of that fact to the Secretary of State; and the notice must be sent in such manner and to such address, and must contain such particulars, as the Secretary of State may determine.
	28C APPROVAL OF COURSES
	(1) If an application is made to the appropriate national authority for the approval of a course for the purposes of section 28A of this Act, the appropriate national authority must decide whether to grant or refuse the application.
	(2) In reaching that decision the appropriate national authority must have regard to—
	(a) the nature of the course, and
	(b) whether the course provider is an appropriate person to provide the course and administer its provision efficiently and effectively,
	and may take into account any recommendations made by any persons appointed to consider the application.
	(3) A course may be approved subject to conditions specified by the appropriate national authority.
	(4) An approval of a course is for the period specified by the appropriate national authority (which must not exceed seven years), subject to withdrawal of approval.
	(5) Regulations made by the appropriate national authority may make provision in relation to the approval of courses and may, in particular, include provision—
	(a) in relation to the making of applications for approval,
	(b) for the payment in respect of applications for approval, or of approvals, (or of both) of fees of such amounts as are prescribed by the regulations,
	(c) specifying the maximum fees that a person may be required to pay for a course and by when they are to be paid,
	(d) for the monitoring of courses and course providers,
	(e) in relation to withdrawing approval,
	(f) for an appeal to lie to the Transport Tribunal against a refusal of an application for approval, the imposition of conditions on the grant of such an application or the withdrawal of approval, and
	(g) authorising the appropriate national authority to make available (with or without charge) information about courses and course providers.
	28D PROVISIONS SUPPLEMENTARY TO SECTIONS 28A TO 28C
	(1) The appropriate national authority may issue guidance to course providers, or to any category of course provider, as to the conduct of courses approved for the purposes of section 28A of this Act; and—
	(a) course providers shall have regard to any guidance given to them under this subsection, and
	(b) in determining for the purposes of section 28B of this Act whether any instructions or requirements of a course provider were reasonable, a court shall have regard to any guidance given to him under this subsection.
	(2) The Secretary of State may by regulations make provision—
	(a) amending section 28A(1)(c) of this Act by substituting for the lower number of penalty points for the time being specified there a different number of penalty points.
	(3) In sections 28A to 28C of this Act and this section—
	"appropriate national authority" means (as respects Wales) the National Assembly for Wales and (otherwise) the Secretary of State;
	"course provider", in relation to a course, means the person by whom it is, or is to be, provided;
	"proper officer" means—
	(a) in relation to a magistrates' court in England and Wales, the designated officer for the court, and
	(b) otherwise, the clerk of the court;
	"relevant local court", in relation to an order made under section 28A of this Act in the case of an offender, means—
	(a) in England and Wales, a magistrates' court acting for the local justice area in which the offender resides, and
	(b) in Scotland, the sheriff court for the district where the offender resides or, where the order is made by a stipendiary magistrate and the offender resides within his commission area, the district court for that area; and
	"supervising court", in relation to an order under section 28A of this Act, means—
	(a) in England and Wales, if the Crown Court made the order the Crown Court and otherwise a magistrates' court acting for the same local justice area as the court which made the order, and
	(b) in Scotland, the court which made the order.
	(4) Any power to make regulations under section 28A, 28B or 28C of this Act or this section includes power to make different provision for different cases, and to make such incidental or supplementary provision as appears to the appropriate national authority to be necessary or appropriate.""

Earl Attlee: I am sure that the Committee accepts that most accidents and driving violations arise from a combination of poor driving skills and the wrong attitude to driving. My amendment would make compulsory retraining much more prevalent. It is important to understand that we are talking about retraining and not retesting. We want to improve the skills of relatively new or even experienced drivers. We do not want to train them just to pass a test.
	Both poor driving skills and attitude can be corrected by driver training. Clause 24 makes some progress in that direction, but I do not believe that it goes far enough. Driver retraining works; if it did not, the Minister would not have made any provision for it in the Bill. Why it is that we religiously test our vehicles every year? We have medicals for older drivers, but we refuse to accept that there is room for improvement in everyone's driving skills. On the one hand, for example, training may educate a driver to realise that he cannot reduce his journey time by much by driving hard. On the other hand, a driver being retrained may, for example, be shown how to negotiate a roundabout without needing to stop at the give-way line every time. Not only would that new skill reduce journey times, but it would also improve comfort and would be safer.
	Retraining schemes should be fun if the driver takes them seriously. One reason why it would be appropriate to have retraining in addition to penalty points and any fine is that retraining should stop repeat offending. However, I support the principle of being able to reduce the number of penalty points on a licence by undergoing retraining. I beg to move.

Lord Lyell of Markyate: I support my noble friend Lord Attlee in what appears to be a very timely and valuable initiative. With the increased number of speed cameras and other offence-catching cameras, the number of people approaching 12 points is increasing rapidly. The object of speed cameras and other cameras is to encourage better driving and to a very significant degree they are having that effect. I applaud that. If, as I fear may happen, an overwhelming number of people are approaching 12 points, there is a danger of motorists having an adverse reaction. If the court were able to say, "Look, normally we would disqualify you, but if you are prepared to undergo a course of retraining, we will give you the 12 points but we will not disqualify you", it seems to me that that would have a highly beneficial effect.
	A short period of retraining will probably help to teach people not to speed, not to jump traffic lights and not to commit other such offences. It is a very valuable approach to a developing situation and I would have thought it was entirely in line with the Government's objectives, which I am fully prepared to accept are to improve the standard of driving rather than to raise money.

Lord Berkeley: I support the amendment. It is an excellent idea. One can think of it as no different from any other type of rehabilitation. People tend to think of driving offences as rather different from other offences. If people undertake the courses, complete them and pass—they will have to give up their time if they are working—that is an excellent idea. I trust that my noble friend will say what a wonderful idea that is and perhaps accept it.

Viscount Simon: I may be totally wrong, but I have a vague recollection that there are five retraining centres in existence now so we could see how they go. They are proving to be very successful. However, if someone commits another offence within a year, he or she cannot take the retraining course again.

Lord Davies of Oldham: I want to assure my noble friend Lord Berkeley that there are plenty of wonderful ideas that I am able to reject at this Dispatch Box and I am afraid that this is one of them. I shall pay the noble Earl, Lord Attlee, yet another tribute, which his noble and learned friend Lord Lyell emphasised. The concept of retraining is a good one. I can see its attraction. However, I am not able to accept the amendment for reasons I shall go into in a moment. I congratulate the noble Earl on the development of the concept. It parallels the drink-drive rehabilitation scheme, which has been in operation throughout Great Britain for more than five years.
	Under sections of the Road Traffic Act 1988 courts have powers to refer persons convicted of drink-driving offences to an approved course which, if they complete successfully, will entitle them to a reduction in their period of disqualification of up to a quarter. However, the disqualification is already in operation when they embark on the course. The disqualification is immediate and that is an important point on which I differ from the noble Earl. Nevertheless, that concept is there. Drivers are under no obligation to undertake that, but if they choose to do so, they must pay the costs themselves.
	Courses are provided throughout Great Britain by some 25 course providers, all of which are approved by the Secretary of State. The minimum course requirements are laid down by the Secretary of State. Typically the courses are of 16 to 30 hours' duration, over a number of separate sessions and they involve groups of between eight and 20 participants. That is not a comprehensive description of the scheme, but it is an outline of what we already have in place. I would be only too happy to pass on to any noble Lord a leaflet setting out the details of the scheme. I recognise that the noble Earl is building on a concept that we have in place already.
	I must now emphasise to the Committee why I cannot accept the amendment. It would provide that courts may order that a person convicted of certain specified offences should be disqualified from driving if, within a period of 12 months from the time of the order, he has not successfully completed an approved retraining course. The offences concerned are careless and inconsiderate driving, failing to comply with traffic signs or speeding.
	The provision would apply only where the offender is not to be disqualified but is to have his licence endorsed with penalty points and the number of penalty points to be taken into account at the time of sentence is at least three points. If the course is not successfully completed within 12 months of the date of the court order, the person would be disqualified from driving. That brings in the concept of delayed disqualification which I must resist. I emphasise that under the scheme already in place for those who have committed drink-driving offences the disqualification is immediate. The court imposes enforced disqualification, but participation on a course can reduce the length of time of disqualification.
	Nor does the noble Earl's amendment tackle the issue of whether a place is available on a course. To make the provision as strong as the noble Earl indicated he would want, we would have to guarantee that places were available on such courses in all such circumstances where an individual opted for that. The Committee will recognise the difficulties we would have in producing such an absolute guarantee.
	The purpose of the amendment may be to try to widen the scope of retraining courses—in principle, I am with the noble Earl on the advantages of retraining courses to improve driving skills—but we find the issue of deferred disqualification extremely difficult to accept. There is no provision in law for disqualification to be deferred. It must commence from the moment the order is pronounced. It is an important principle. I think that the noble Earl would say, in his own defence of course, that he is prepared to introduce that principle. We would have some difficulties with the practical implications of that. As a consequence, although I recognise the advantages of retraining in relation to punishment for offences as an aid to improvement, I do not think that I can accept this amendment.

Lord Lyell of Markyate: I am most grateful to the Minister, but I think that the answer he has given to the Committee has missed the point. As I understand the amendment of my noble friend Lord Attlee, deferred disqualification does not come into this. Proposed new Section 28A (1) states:
	"This section applies where—(a) a person is convicted . . . (b) penalty points are to be attributed to the offence and the court does not order him to be disqualified".
	When you reach 12 penalty points disqualification by the court is not mandatory, it is discretionary. So the situation we are considering is where the court might well disqualify, but a thoroughly sensible motorist who realises that this had all gone on for too long and that he had better improve his driving will come to the court and say, "I will undertake a course"—and of course courses need to be provided—"if you will be prepared not to take away my licence at this point". I cannot see any objection in principle whatever.
	My noble friend Lord Attlee, has brilliantly drafted these long and complex clauses and it would not surprise me at all if the department did not want to have another go at the clauses. I very much hope that the Minister will be able to say that this is a thoroughly good idea, as, indeed, he was kind enough to say in principle that the department would look at the setting up of sensible courses of this nature and would seriously consider perhaps coming forward with its own clause to provide this opportunity, which I believe will be very valuable.

Earl Attlee: I am grateful for the support of my noble and learned friend. Unfortunately, I think that the Minister might be right about the point on disqualification. I am also very grateful for the Minister's helpful response. He explained how my amendments work far better than I could. I shall be covering the point about lack of training capacity in the next group of amendments. I have an amendment that specifically deals with the point. Subject to the usual caveats, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	Clause 23 [Penalty points]:

Lord Hanningfield: moved Amendment No. 103:
	Page 25, line 7, leave out "seven" and insert "three"

Lord Hanningfield: This series of amendments, as my noble friend Lord Attlee said, follow on from his amendment. In moving Amendment No. 103, I shall speak also to Amendments Nos. 104 and 107, which are all probing.
	The clause enables the courts to offer offenders convicted of certain specified offences the opportunity to undertake a retraining course, which would give them a remission of penalty points. The clause inserts into the Road Traffic Offenders Act 1988 new Sections 30A, 30B, 30C and 30D, which enable a court to offer persons convicted of offences of careless and inconsiderate driving, failing to comply with traffic signs or speeding, the opportunity to pay for and undertake a retraining course in circumstances where the driver is not to be disqualified but his licence endorsed with penalty points, which is rather different from the discussion we have just had.
	As the Bill currently stands, those circumstances are that at least seven and no more than 11 points are to be taken into account at the time of the sentence, which leads me on to the first amendment in this series.
	Amendment No. 103 is designed to elicit from the Minister the reasoning behind why the benchmark of seven penalty points was set as the starting point where a driver could apply to carry out one of these courses.
	It appears to me that surely we should be encouraging all individuals to be responsible road users and to have the opportunity to attend a retraining course along the lines of the debate we have just had if they are allocated any number of points. Surely it would benefit someone who has three points as much as it would someone with seven. Indeed, I would have thought that it would be advantageous for us to try and nip this irresponsible behaviour in the bud well before anyone gets close to amassing seven penalty points. I would therefore be most grateful if the Minister could shed some light on this reasoning.
	Amendments Nos. 104 and 107 both have a similar intent. Amendment No. 104 is designed to tease out what other offences the Government have in mind that could either be added or removed in relation to the qualification for attendance on these courses. Also I would have thought it was sensible to have a period of evaluation to see whether the scheme is actually working. I hate to answer my own questions, but presumably such a period would then be useful to see if further offences could be included or removed under paragraph 2.
	Finally, Amendment No. 107 is simply designed to probe the Minister as to what conditions specified by the national authority would the course have to meet before it was approved. Presumably the nature of the courses would differ between the different jurisdictions of, say, England and Wales. Again I should be grateful if the Minister would comment on how he sees such differences emerging and whether there would be any concerns over difficulties of interpretation as a result of these divergences.
	Along the lines of the previous debate, I can see that there must be an expansion of these clauses. The Minister suggested that there are not enough trainers, so, whatever we do, there will have to be some expansion of these courses to enable these provisions to act. Therefore, I beg to move the amendment.

The Earl of Dundee: My Amendment No. 106 is in the group. It seeks to add to the requirements for those taking a driver awareness course. As things are, such drivers must pay the fee, they have to attend the course properly and show that they have followed instructions. Yet there is no reference to their need to attain an appropriate standard. Clearly this omission is somewhat anomalous. I therefore invite the Minister to accept such a reference accordingly as indicated by Amendment No. 106.
	Amendment Nos. 198, 110 and 112, also in my name, focus on the role of the Secretary of State. They propose that benefits of these courses are assessed at relevant intervals, that the Secretary of State may consult in their regard, and that he may extend their use as relevant.

Earl Attlee: I have Amendments No. 105, 109 and 111 in the group. Turning first to Amendments Nos. 105 and 109, New Section 30A(7) of the Road Traffic Offenders Act prohibits the court from making an order for retraining unless it is satisfied that a place is available. First, how is the court to know that a place is available? Secondly, are we not in a chicken and egg situation? This point also links in with my previous amendment and the problem identified by the Minister about training capacity. There are plenty of people who could do driver training but who choose not to. I used to be a qualified Army driving instructor. My qualification is now out of date, but I could probably re-qualify if I wanted to. I enjoy the work and have done it commercially.
	However, like many others, I do not do it because it is not remunerative enough. I am also quite busy at the moment, but at some level of remuneration I would have to be tempted, even if only on a part-time basis.
	If there was an increased and temporarily unsatisfied demand, more potential instructors would come forward to meet the demand. Drivers requiring retraining will simply have to pay what the market demands. After all it is their problem since it is their driving that is below standard.
	My Amendment No. 111 covers appeals against issuing a retraining certificate for drink offenders under proposed new Section 30B. I have to apologise to the Committee because I should also have drafted a new provision for Section 30A which deals with penalty points. However the principle behind my amendment is the same for both new sections.
	The provisions in the Bill are a major concession to offending motorists. I am concerned that the regime could be undermined if the trainers were worried about being appealed in court if they refused to issue a retraining certificate, even if they knew they were right to do so. Can the Minister explain why my fear is groundless? Without the appeal provisions, what is the worst that could happen? The offender would have to take another course with a different provider. I am not convinced that the Minister has got the balance right.

Baroness Gardner of Parkes: My Lords, at an earlier stage, when we discussed penalty points for speeding, the noble Lord, Lord Bradshaw, made the point that the police or whoever issued the speeding fine, not the court, offered the offender the choice of retraining in lieu of penalty points. I presume from what the noble Lord said at that stage that the option applied only now and therefore someone who committed their first offence when the option was not available, but who wanted to take up the option now—on their second offence, for example—would have "missed the bus". Are those training courses the same type as those about which the noble Lord, Lord Bradshaw, talked earlier, or is there a substantial difference? He told us that the uptake by those offered a course instead of penalty points was very high.

Lord Davies of Oldham: I am grateful to noble Lords for the clear way in which they spoke to their amendments on training courses. Under our new provision, the decision would be taken in the courts. As the noble Lord, Lord Hanningfield, explained clearly, it is an opportunity for drivers whose licence has been endorsed with penalty points, not disqualified, to pay by undertaking to participate in a retraining course. I emphasised why I regarded such cases very differently from those of disqualification, on which we differed during the debate on the proposals of the noble Earl, Lord Attlee.
	The noble Lord, Lord Hanningfield, asked why we do not start earlier, and why we restrict the option to those who have already committed several offences, in the bracket of seven to 11 points. He suggested that we widen the provision so that more can avail of the option to retrain to improve their driving skills and learn a few lessons. I have no doubt, given the way in which the retraining is carried out, that lessons are drawn from past bad practice; examples of bad practice will be shown and they will be clearly recognised by the offender. The reason that we do not offer retraining from the beginning is that we must be able to provide enough courses. We cannot ask the courts to make such a provision without having sufficient places for offenders.
	I hear what the noble Lord says. I do not dispute the desirability of granting the option to all; nor do I deny that we should work towards potentially offering the option to all appropriate offenders. However, I ask the noble Lord to accept that we must see how the scheme goes. It is a significant administrative commitment and a big exercise. It must be guaranteed because it is about the enforcement of a penalty. Although these courses are different from the points system, they are a penalty because they are imposed. It is a useful concept, to which all noble Lords subscribe, and we want to start by dealing with limited numbers with which we can cope. As the Committee will recognise, the problem is that many people commit one offence and fall into the three-points category. We would be taking an enormous risk if we said that we could set up a strategy

Lord Hanningfield: The Minister used the very useful phrase "work towards". Plenty of legislation includes timetables. Although there are not enough retraining courses now, will the Government consider providing them over a period, so that we can work towards the objectives proposed in my amendments? It seems to be what the Government want anyway? Perhaps, even if we do not create a definite timetable, we could include in the legislation wording that would allow us to get there in the end.

Lord Davies of Oldham: We are eager to make the courts' position as credible as possible if they make such an offer. We fear that the obvious outcome would be that a court, although it would prefer the option, cannot do so because there are not enough available training places. I understand what the noble Lord is saying and do not object to his proposal in principle—far from it. We are eager to implement the principle, but his amendment would get us into considerable difficulty.

Lord Hanningfield: I would be happy to work with the Government on a better amendment for it.

Lord Davies of Oldham: I am grateful for that, too. We will continue to work together towards that common objective. I am also grateful for the noble Lord's amendment, as it gives me the chance to clarify our position. However, I must be precise about what I am prepared to accept in the Bill and that which I am not. Although I understand the noble Lord's position in principle, I cannot accept his amendment.
	Amendment No. 104, also tabled by the noble Lord, Lord Hanningfield, would remove the power of the Secretary of State, by regulations, to add or remove offences in respect of courses under Clause 23. I cannot see the argument for that. I understand why we must be watchful of the powers that we give Ministers, and why proper checks and balances must be in place, but new offences are bound to emerge, given the inceasing amount of traffic. It would be odd if we had to return to primary legislation before we could bring any of those within the scope of the provisions.
	The last amendment tabled by the noble Lord, Lord Hanningfield, would remove the power to approve courses subject to conditions. Without those conditions, we would be constrained to approve courses that might be acceptable in limited circumstances but would not in their generality meet the Secretary of State's standards and guidelines for approval. I recognise what the noble Lord is driving at and accept his point that we might need flexibility in different parts of the country. Imposing on someone in central London the obligation to attend a course for three days a week is different from imposing on someone in the Scottish Highlands the obligation to attend a course in Inverness three days a week. I am grateful for the nod from the noble Earl, Lord Mar and Kellie, who knows those issues only too well. If we can achieve the same objectives by limiting the duration of the course and cramming it into a shorter period, we may need to do so thus avoiding adverse penalties depending on the part of the country in which the offender lives. We seek such flexibility. The noble Lord indicated that Amendment No. 107 was a probing amendment. That is why we take that position.
	The noble Earl, Lord Attlee, seeks to remove the provision that the court must be satisfied that a place on the course will be available to the offender. I am afraid that we must defend that provision.
	This is an important duty for the court. In order to sustain the court's credibility in adopting this penalty for a person who has committed a traffic offence, it is essential that the penalty can be imposed and complied with. That is what we do, as I illustrated earlier, by guaranteeing places for drink-drive offences, and we seek to sustain that in Clause 23.
	I understand the noble Earl's point, but we feel that to remove these requirements would leave the offender in the unsatisfactory position of not being able to take advantage of the court's order, and therefore having to have the other punishment, because there were not places available. That would put the authorities in a difficult position, one we would seek to avoid.
	The noble Earl, Lord Dundee, has tabled Amendments Nos. 106 and 110. My noble friend Lord Berkeley also supports them, although he is not able to give voice to that this evening. What happens in the situation where the provider might decline to issue a certificate of completion, thus denying the offender the opportunity to benefit from a remission of penalty points? These circumstances involve failing to pay the fee, failing to attend the course in accordance with the course provider's reasonable instructions, or failing to comply with any reasonable requirement of the course provider.
	As I understand them, the noble Earl's amendments provide for additional circumstances to be inserted into all this regarding failure to achieve an appropriate standard. We are all concerned about standards with regard to such courses, and I understand that his motivation is to ensure they achieve our objective. The courses improve the skills of the motorist, and make them better, more responsible drivers, so the offences are not committed again. I do not doubt the motivation behind these amendments.
	The problem is that we do not propose formal assessment or marking at the end of the course. That would introduce a whole new concept into the way the courses would run, and raise a whole strand of issues with regard to appeals, which I will come to in a moment. Once we introduce the concept that the course evaluates performance in some detail, the role of these courses is totally different. Our expectation is only that the offender attends and participates in accordance with the requirements of the course provider. Lack of co-operation or recidivist behaviour would be grounds for immediate dismissal from the course, which would involve the other penalty being imposed.
	We would not want to be involved in setting standards of performance. I think noble Lords will recognise that we have a large and complex enough task to establish courses of this kind and to make them work and achieve their objectives with rigour and consistency, especially if we make progress with the idea of the noble Lord, Lord Hanningfield, to extend them to a far wider range of offenders. To introduce a whole range of evaluations and performance tests would lead us into a difficult area. I hope the noble Earl will recognise that I understand his desire to raise standards. We just do not think that is possible within this framework.
	On Amendments Nos. 109 and 112, I assure him that the development of such schemes is done in collaboration with other bodies involved, notably the courts, as well as course providers, with which the Department for Transport has a routine dialogue on the subject. To bring in a statutory consultation procedure would not bring any particular benefit, and it is not necessary. There is no way we can institute these courses without the fullest consultation, both with the courts which will impose the penalties and with those who would be expected to be the providers. I hope he will recognise that I understand the sentiment behind the amendment, but we would guarantee that effective consultation went on. In fact, we cannot attain our objectives without that appropriate consultation.
	Finally, on Amendment No. 111 regarding the question of appeals, it seems to me that the noble Earl, Lord Attlee, is at one end of the spectrum, and the noble Earl, Lord Dundee, is at the other. If we had any evaluation along the lines proposed by the noble Earl, Lord Dundee, we would have great trouble with any concept of appeal. Suffice it to say, on the basis that we intend to operate these courses, we think the right of appeal should be guaranteed. It is in our drink-drive rehabilitation scheme, and we think the scheme should have the same concept.
	It is an elementary right for people who have been through a process of this kind at least to have some challenge, if the process should let them down so hugely that they might have a case to put against the provider. That is why we think there should be a right of appeal, but we also recognise that these are offenders who go on courses because they have committed breaches of the law, so we recognise that the powers of appeal would be used sparingly on fairly narrowly defined lines. It would not escape anyone's imagination that there could be one occasion when a provider so failed in his duty with regard to the course that an individual had a complaint against him, and that is why we think a right of appeal should be there. I hope the noble Earl, Lord Attlee, will recognise that we are not weakening at this juncture, but safeguarding a basic right.
	I hope that I have answered all the points on the amendments sufficient for the movers to withdraw them, but I notice I have not quite.

The Earl of Mar and Kellie: I thank the Minister for giving way. He was good enough to mention my nodding agreement to issues around running a course in the Highlands. I will press him on that. Inverness is clearly a large enough centre to generate enough errant drivers, but I am interested in how these courses might be provided in north-west Scotland and in the four island groups. Would be possible to deliver such a course on a peripatetic basis? Would people from the Isle of Lewis who have managed to get themselves into this situation have to report to a centre in Inverness? Will Stornoway, for example, be a centre?

Lord Davies of Oldham: I cannot answer any of those points in detail. I used Inverness merely as an illustration; I was not quoting it as a centre. We are not so far down the road that I can give a list of centres. There is an awful lot of work to be done on it. However, I undertake to bear in mind what the noble Earl has said. I hoped to give that reassurance earlier to the noble Lord, Lord Hanningfield, who, I think, introduced the concept first. There should be some element of flexibility about the course, certainly with regard to its duration, because of those very factors. I gave that undertaking, and I take on board the points made.

Earl Attlee: I am grateful for the Minister's extremely helpful explanations. I accept that we are only starting the retraining schemes, but, if demand for driving instructors exceeded supply, would the Minister be content for the pay of driving instructors generally to rise? If it does not, we will not increase the supply of driving instructors.
	The Minister mentioned the drink-drive scheme and the appeal system in place for that. Have there been any appeals? If he does not know now, will he write to me?

Lord Davies of Oldham: I shall be happy to write to the noble Earl.

Lord Hanningfield: We have had another interesting debate. We are having quite a lot of good debates on the Bill tonight. I found the Minister's answers very helpful.
	I return to a point on the first amendment. Over time, one would hope to make the courses more generally available for people who have committed offences and are getting points. I hope that, between now and Report, the Minister will reflect on what we have talked about. There might be some in-between amendment that will take us to where we want to get ultimately. I would be happy to discuss the matter between now and Report to see whether we can reach some agreement. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 104 to 108 not moved.]
	Clause 23 agreed to.
	Clause 24 [Reduced disqualification period for attendance on course]:
	[Amendments Nos. 109 to 112 not moved.]
	Clause 24 agreed to.
	Clause 25 [Driving tests]:

Lord Hanningfield: moved Amendment No. 113:
	Page 34, line 7, at end insert—
	"( ) In subsection (1) (tests of competence to drive)—
	(a) after the word "requirement" insert ", has received first aid training";
	(b) in paragraph (b) at end insert—
	"an applicant shall be considered to have received first aid training if on the date the application for the licence is made he has received the training prescribed by virtue of subsection (3) below"."

Lord Hanningfield: It has been evident throughout the passage of the Bill that there is strong cross-party support for the objective of increasing road safety and reducing casualties on the roads. At Second Reading, it was clear that there was support in all parts of the House for giving careful consideration to the introduction of a first aid component into the driving test. No fewer than six noble Lords spoke in favour of such a move. Amendments Nos. 113 and 115 would enable the introduction of a first aid requirement.
	The introduction of a first aid component into our driving tests not only fits in with the intention of the Bill but would directly contribute to the aim of reducing casualties on roads in the UK. There are 10 deaths on our roads each day, and it is entirely right that our main focus must be on preventing accidents happening in the first place. However, we would be naive if we failed to acknowledge that accidents would continue to happen. It is incumbent on us to consider how many lives could be saved if those involved in an accident had basic first aid skills.
	The simple fact is that the most common cause of death in a road accident is a blocked airway. Timing in such cases is crucial. It takes, on average, eight minutes for the emergency services to get to most urgent cases: it takes less than four minutes for a blocked airway to cause death. That gives us a stark example of how learning the most rudimentary first aid—that tilting the head back unblocks the airway—can save lives. Research has shown that, in a significant proportion of road accidents, the victims sustained injuries that almost certainly led to their death. However, in cases in which death was not inevitable, up to 85 per cent of victims had an airway obstruction. If that had been dealt with at the scene, many of those people would have survived.
	Putting first aid in the driving test will target the right group: young people. Drivers under the age of 29 make up more than a third of those involved in accidents. Drivers between 17 and 20 are six times more likely to be involved in a collision that causes injury than drivers over 40. That is why the driving test is an ideal time to learn the basic life skills of first aid.
	Let us be clear on what we mean by learning first aid. We are not trying to turn our nation into paramedics overnight. We are talking about basic skills that are easy to learn and easy to teach. Simple techniques, as I said, such as tilting the head back to unblock an airway or raising a bleeding arm and applying pressure are skills that are easily picked up in a matter of a few hours and are simple to remember. Those skills could also save lives.
	People who learn first aid are more likely to know their limitations and understand what they should not do, such as removing a motorcyclist's helmet unnecessarily if he or she is likely to have sustained head injuries. So the benefits are numerous. It is important that we also understand that we would not be requiring people to administer first aid. The amendment certainly does not introduce any obligation whatever for people to attend those with injuries. However, what a terrible shame it would be for people who could help—for example, to tilt a head back in order to enable someone to breathe—not to know that one simple skill that could save lives.
	Noble Lords have also raised the issue of liability. I am happy to report, even in this increasingly litigious society, that there is no case law whatever to support the idea that you can be sued for being a Good Samaritan. By giving first aid to a person, you owe them a duty of care to carry out that first aid in accordance with your knowledge, training and experience. It is highly unlikely that a successful claim could be made against you for trying to help an injured person.
	Clearly, the implementation of a first aid requirement would need to be phased in, just as the requirement for first aid qualified people in the workplace was phased in. The DVLA should not have any dealings with the delivery of first aid training. The most practical solution is the presentation of an accredited first aid certificate in order to fill that requirement. With more than 1,000 approved "first aid at work" providers in the UK, that seems entirely practical. The structures in place for first aid certificates at work through the Health and Safety Executive give a model of how that could be achieved and, indeed, could be used to administer training.
	The case for introducing first aid as part of the driving test is incredibly strong. On passing the driving test in the UK, you are allowed to be in charge of a machine that can cause injury and death. Clearly, taking just a few hours to learn how to save a life in the event of an accident does not seem unreasonable. It sounds like common sense. I hope that the Minister will respond in detail to this amendment and will give the Government's intentions on first aid provisions in the Bill. I beg to move.

Lord Bradshaw: I support the amendment. The noble Lord, Lord Hanningfield, has described the situation well. I will not go on to elaborate it very much, except to say that there are now plenty of interactive-type methods of training. A person can sit at a computer and go through the simple requirements, such as stopping bleeding, clearing airways, and the things that one should not do—for example, if a person's back is obviously injured, he or she should not be moved. That can be taught relatively easily by simple interactive means, as well as by attending courses.
	I do not accept the arguments that we heard in Grand Committee about not wishing to make the driving test more complicated. By taking a driving test, a person is committing himself to going on the roads, mixing with a lot of traffic and driving straightaway at high speeds on motorways. Before doing so, it is incumbent on a person who will be in charge of a dangerous machine to do something to equipment himself should he be in the unfortunate position of being involved in an accident.
	The department could talk to the Red Cross, St John Ambulance and various other organisations quickly to put together a package that can be added to the theory test, which drivers would have to undergo, so that they would be competent to deal with a situation with which we hope they will not be faced, but probably will. Of course, first aid training would be very useful in other walks of life, not just if a person is involved in a road accident. I support the noble Lord, Lord Hanningfield, and hope that the Minister can respond positively, if not now, when the Bill comes back on Report.

Baroness Masham of Ilton: My name is added to Amendments Nos. 113 and 115, which I strongly support. For years, I have felt that first aid should be taught in our schools as part of the curriculum, but this would be a help. It would target a group of people who really need to be able to help each other when they may be stuck in a car. There was a multiple crash on the M1 not long ago when helicopters had to take people off. When someone is stuck in a car bleeding to death and they do not know what to do and how to put pressure on to stop the bleeding they can die in a few minutes.
	The British Red Cross and St John Ambulance are willing to work closely with the Government to get something workable off the ground. We would not be the first country to have first aid in the driving test. Slovakia and various other European countries have it. They have far more stringent safety guards in their driving—we have grown slack—and triangles are put out in accidents. All cars have to have triangles, even in France. We are lagging behind. First aid saves lives: that should be the message.
	If one thinks back to the horrific recent bombings, anyone who was first-aid trained could see how a first aider would be able to help and they would not be frightened. The public were magnificent in the way that they helped each other. They would be able to help each other more in such horrible situations if they had basic first-aid training. I implore the Government to take the issue seriously and to be helpful.

Earl Attlee: I have tabled Amendment No. 114 in this group. These are extremely important amendments. I am grateful to my noble friend Lord Hanningfield for moving his amendment and to other noble Lords who have spoken. I agree with most of what my noble friend has said, but I have a slightly different approach. All noble Lords agree that we have an opportunity for improvement. We know that the Minister is probably not keen on introducing a major first-aid test into the driving test. The Driving Standards Agency—the DSA—should be employing driving examiners, not first-aid examiners.
	However, we could require either a first-aid certificate or evidence of first-aid training. Another difficulty with the approach is that youngsters taking their driving test have enough on their plates at that point in their lives. In addition, they will do only the bare minimum of study and then forget what they have learnt. We have a life-skill problem, which I hope that many of us will pursue, particularly when we debate education and health matters.
	After Second Reading, mindful of the Minister's anxieties about new tests, I sought a high-quality briefing on the matter and I was lucky enough to be briefed by a senior emergency medicine consultant. I circulated a report of my meeting to many Members who were present at the start of the Committee. Aside from the general discussion on first aid, he was at pains to emphasise that the casualty would die in four minutes, as my noble friend Lord Hanningfield pointed out, if three key life-saving actions were not taken immediately: procure an airwave; immobilise the neck; and detect and control external bleeding.
	A casualty is very lucky if he has a competent first aider attend him in the first few minutes, but that is all it takes to die if the immediate action drill is not carried out. However, he would be unlucky if he did not have a competent first aider in seven or eight minutes. The logic is as follows: the casualty will die in about four minutes if his airway remains blocked. Therefore, if the casualty is unconscious, the head needs to be carefully brought back and the jaw pushed forward: that opens the airway. If the casualty is speaking or trying to do so, there is not a breathing problem or an airway problem. The neck must be kept immobilised because the spine could be severely damaged: if one does not know, play it safe. The casualty should not be moved from the vehicle unnecessarily. Lastly, there needs to be a check for bleeding. The casualty can bleed to death in a few minutes from external wounds, but normally it can be stopped simply by applying pressure using anything, not just a sterile dressing. The casualty might be bleeding internally, but additional external bleeding will reduce the chances of survival.
	If we did decide to introduce some element of testing, what should be done—especially if we want the DSA to employ driving instructors, not first aid testers? It is very simple. All that is needed is for the candidate to demonstrate at the test centre attempting to communicate with the casualty—"Hello mate. How are you doing?"—procuring an airway by carefully tilting the head back and pushing the jaw forward if necessary, and immobilising the neck and holding it still until more skilled help arrives. The candidate should then state the need to the examiner to search for bleeding and demonstrate applying pressure to the wound to stop the bleeding. It is as simple as that. Those are the three things that must be carried out immediately, in the first four minutes.
	There are a number of obvious advantages to this approach. It is a drill involving almost no diagnosis and no specialist skills are required to train or test it. Young drivers would find it easy to explain among themselves how easy the drill is, which means that they will not forget it. There is also a hidden advantage. Passing the driving test is not easy and a certain amount of bottle is required. If the examiner is able to tell the candidate that he has passed part of the test, it is bound to help the candidate's confidence.
	The Minister could increase the number of first aid questions in the theory test, but the problem with such an approach is that unless a full-blown first aid course underpins the candidate's knowledge, he or she will quickly forget. At Second Reading the Minister mentioned the difficulty of candidates who are squeamish. While the drill I have described will cover most cases, it might be sensible to provide for some exemptions with a doctor's certificate. It would be far better to dispense with all the theory questions and go for a very quick practical assessment that tests only the ability to procure an airway, immobilise the neck, and detect and control bleeding. It would mean about 30 seconds' worth of practical testing with a dummy.
	Finally, I should like to remind the Committee that this is not my interpretation of first aid requirements at road traffic accidents; it is derived from a briefing by a senior emergency medicine consultant.

Baroness Gardner of Parkes: This is an interesting series of amendments, but I have grave reservations about them. The point made by my noble friend Lord Attlee is sound: that it is not possible to incorporate full first aid training into a driving licence requirement. That is the practical point. The three main areas set out by the consultant are splendid, except that it is not nearly as easy as it sounds to immobilise the neck while opening the airway because it involves two slightly conflicting actions. I speak as someone who has given many thousands of anaesthetics.
	However, the biggest problem with the whole issue is the question of liability and litigation. Some 20 years ago a friend's life was saved after a road traffic accident by a doctor who was jogging past the scene. He vanished immediately and has never been traced. We were told clearly that his reason for leaving was because he could have been sued if the patient had not been satisfied with how well she had been treated, even though he definitely saved her life. I know that to be the medical view. While I take the point that a lay person with only basic training cannot be expected to do more than the basic minimum, and in that way the proposal is good, we need to change our law in other respects. We should adopt the French system whereby an obligation is placed upon citizens to be the Good Samaritan, but they are not held liable if whatever is done to aid the injured person is intended to help them. Here, however, there is a great reluctance to help anyone for fear that they will not be 100 per cent pleased with the outcome. It is an interesting issue and should certainly be considered.
	In serious cases—someone mentioned the recent terrible bomb incidents or train crashes—any degree of first aid knowledge is extremely valuable. However, if this is something that everyone has to acquire in order to pass their driving test, I am not sure that a good enough standard will be achieved. The points made by the noble Earl, Lord Attlee, could well be incorporated in the Highway Code or in advice to people. Then it would be up to people to do their best. I do not think that this Act could cover the change to a Good Samaritan system whereby you were obliged to help people and if you did not do so you were at fault. That change would be needed before these measures could really work properly.

Baroness Gibson of Market Rasen: I rise as one of those who mentioned at Second Reading the views of the Red Cross and its support for legislation of this kind. The Red Cross and St John Ambulance have been working hard for the Government to hear their voices on this issue. I recognised at Second Reading that there were some practicalities in relation to the kind of first aid training that would be given—the noble Baroness has just outlined some of them. However, I believe that the amendment of the noble Earl, Lord Attlee, has overcome many of them because it calls for,
	"the immediate life saving drills to be carried out in the event of a serious accident",
	not extensive knowledge of first aid. I hope that, with the help of the Red Cross and St John Ambulance, the Government will come up with some support for these amendments. I hope that my noble friend will give us a favourable response.

Lord Davies of Oldham: I am grateful to all contributors to this debate, which is a constructive attempt to improve the driving test to deal with an issue that we all recognise is important. Of course, we support the idea of raising the level of first aid proficiency among the general public. We know how important that can be in emergencies. The Driving Standards Agency already includes in the multiple-choice part of the current driving theory test questions on both first aid and accident handling. The question bank for the learner car driver and motorcyclist theory test consists of more than 1,200 questions on a wide range of road safety related topics, including 22 first aid questions and 56 dealing with more general accident handling.
	I bear in mind the points made by noble Baroness, Lady Gardner of Parkes. It is important that people acting in such circumstances do good rather than harm. She is absolutely right that there is a problem—this Bill is certainly not the vehicle for changing the basis of liability in the law for attendance at accidents. However, I do not think that we should underestimate how intensive the work is to get someone reasonably trained in first aid to do a proper job. The question is straightforward—should the passing of the driving test be conditional on such training? The question is not whether the outcome is desirable—nobody doubts that—but do we say that such training should be an intrinsic part of the test? Are we asking people to undertake a separate area of work and acquire a skill in addition to the current test?
	I heard some reference to other driving tests, but none that I know of requires a level of skill apart from the ability to drive safely. That is what we require with our driving test and it has one of the highest standards in the world, which is why I am able to erect the defence—which I will in due course seek to erect—against those who suggest that newer drivers ought to have additional requirements on them. However, we will reach that debate in due course.
	We should not underestimate the intensity of our test or the fact that questions are included in it that deal with elementary aspects of first aid. However, that is very different from suggesting that, effectively, a separate part of the course would have to be completed successfully before someone was qualified to drive.
	There will be costs involved. The cost of the test would inevitably rise. It is an additional burden that we would have to introduce. Pleas have been made that we should consult the Red Cross and St John Ambulance. Let me assure the noble Baroness, Lady Masham, who introduced this point, that we have been talking to both of those bodies. We are interested in strengthening this skill level. We have discussed with them these issues in a way that we hope will lead to a strengthening of that part of the driving test. However, that is a long way from the amendments, which ask for rather more than that. They ask for it to be a condition of the test that a separate range of skills is developed. I have the greatest difficulty in accepting that. I do not know whether it is widely recognised, but it costs individuals seeking to subject themselves to our present test between £800 and £1,000 to achieve the requisite skill level to pass the test. All I am saying is that we have to be careful about how we have a qualitative leap in demands that significantly increases those costs. I maintain that we would need to act with care in this area.
	I heard what the noble Earl, Lord Attlee, said about those who find first aid considerations particularly difficult. There are some in that category. As the noble Baroness, Lady Gardner, emphasised, there are all kinds of reasons why people would have some reservations about their ability to cope in the shock of an accident irrespective of the level of skill, not to mention the fact that when people talk about effective first aid they usually mean skills that are regularly employed and are subject to enhancement and further retesting on a fairly regular basis. No one contends that the driving test should be subject to three, five or seven-year evaluations. We could not conceive of such a concept.
	I am therefore completely with all Members of the Committee who seek to improve the level of understanding of first aid in our nation. In that respect, drivers are important because they are more likely than those in other operations to be close to serious occasions on which those skills need to be deployed. However, we need a balance. I emphasise that, of course, we shall continue to consult with those groups that I have already mentioned, with whom we have already had intensive discussions. We will consider how we can improve the test theory.
	The noble Earl, Lord Attlee, emphasised that we would need to tread very warily in relation to an additional test. It is important that drivers are competent to deal with the immediate aftermath of an accident. That is exactly why we intend and will continue to ensure that the driving test addresses that theory. His amendment, too, raises important considerations in relation to the extent of the test. I hope that the Committee will recognise that we share those objectives. We believe that the theory part of the test is the basis on which to make progress. Anything beyond that would have very profound implications for the way in which the test is conducted, and I would have to resist those proposals.

Earl Attlee: I am rather disappointed with the Minister's response to my amendment. While I agree with most of what he said about the difficulties of having an additional test, I do not recall his coming up with any argument against my amendment apart from his referring to some difficulties. Perhaps if the Minister does not want to recount them tonight, he will write to me stating exactly what the difficulties are with my proposal.

Lord Hanningfield: I thank the Minister for his response. I have gathered information on this matter and I note that we have had many debates on the use of mobile phones. However, I gather that teaching people the simple process of clearing an accident victim's airway would save many more lives than banning the use of mobile phones while driving. The measure that we are discussing could constitute the most important measure in the legislation in terms of saving lives. Therefore, it needs to be given very serious consideration. It probably is the most important debate that we have had.
	I appreciate the practicalities to which the Minister referred. I do not think that any of us expect people taking the driving test to undertake at the same time a full first aid course. As the Minister said, discussions have taken place with various bodies. I have had discussions with them and I shall continue to do so. One might be able to improve the driving test as regards the matter that we are discussing to enable people to obtain a basic knowledge of first aid. If such knowledge will save many lives, we have a duty to try to provide it. The Minister said that he was having discussions with bodies. I shall keep him to that at Report. However, I hope that the Government will come up with a measure before Report that might take us a little way along the road in this matter. With that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 114 and 115 not moved.]

Earl Attlee: moved Amendment No. 116:
	Page 34, line 33, at end insert—
	"(e) after paragraph (c) insert—
	"(ca) for a person submitting himself for a test to provide evidence of professional driving training received and the minimum duration of such training"."

Earl Attlee: This amendment is rather simpler. Before discussing it I should state that I have not recently been briefed on it by any organisation involved in driver training; it is entirely my own idea.
	While paid driving instructors must be registered and qualified, there is no requirement to use them. The problem is that it is quite possible to pass the test without having had any professional instruction. A competent driving instructor will try to ensure that his student is not only well trained but also comprehensively trained; that is to say, that he will have covered a whole range of matters that may or may not come up in the driving test.
	There is another problem. Most drivers, including myself, overestimate their driving skills, but young, male novice drivers are the worst. A new problem is arising whereby candidates fail the driving test but brag about their capabilities and refuse to acknowledge their failure and commence driving unaccompanied as if they had passed the test. If these characters had received some professional instruction, they would be more likely to realise their limitations before they took the test. They would then take a more realistic view of their chances of passing it and might modulate their bragging accordingly. They might not leave themselves with no way out if they fail the test. Even if they carried on driving without trying to pass a test, at least they would have had some proper training. I beg to move.

Baroness Gardner of Parkes: This is an extraordinary amendment. Surely you cannot pass your test unless you are able to drive. If you are able to drive, it does not matter who taught you or how they taught you; the essence of the matter must be the test. However, my noble friend referred to another serious matter. If people are failing the test but driving while pretending they have passed it, it is terribly important that they should be caught up with. I believe that the amendment of the noble Earl, Lord Dundee, and my later amendments, which seek to mark new drivers' cars, might constitute a way of catching those people.

Lord Davies of Oldham: The noble Baroness, Lady Gardner of Parkes, has typically hit the nail right on the head. That is our exact objection to the proposal, rather than the intent behind it. We want to see an enhancement of driver skills in this country, so we are taking measures to improve the quality of driving instruction. We have said that those who give driving instruction should have enhanced standards, and be expected to meet higher requirements. There are areas of specialist driving where we would expect to raise standards through making additional demands.
	In the case of the ordinary person who wishes to become a driver, however, it is the test, not how they arrived at the result or what kind of instruction they had, that matters. I hear what the noble Earl, Lord Attlee, says: that if they have failed the test then they will have benefited from driving expertise. That may or may not be so—I think it probably is so. Nevertheless, we have a driving test to detect whether a person is safe to drive on British roads. It is the test which has to be passed, not a certificate obtained on how one arrived at the competence with regard to the test.
	I understand the motives behind the amendment: to raise standards in this country. We are at one with the noble Lord on that and will make progress in the ways that I have indicated, but in circumstances in which we are confident that this is one of the most rigorous driving tests in the world. As I have indicated, for ordinary drivers seeking to pass the test for the first time, it usually involves a number of hours of expert tuition. It may be that a small number can get by on the basis of help from unqualified drivers, but the vast majority of our fellow citizens get through this test through substantial expenditure on driving instructors, whose standards we want to raise. That is the basis on which this rigorous test currently makes its demands, and we should therefore not worry about how people have reached that level of competence. We should assure ourselves that that level of competence remains high.
	On that basis, I hope the noble Earl will accept that I am not in a position to accept his amendment, well intentioned though it is. I hope he is prepared to withdraw it.

Lord Brougham and Vaux: How are the Government going to raise the standard of driving instructors?

Lord Davies of Oldham: I have given an indication that we have it in mind to look at the way in which we will improve those qualifications. I am not currently in a position to give details. We are thinking of looking, in the first instance, at driving instructors who deal with specialist vehicles—public service vehicles, heavy goods vehicles and so on. We are concerned about this. We recognise that the present situation could and should be improved. I have given an undertaking to look at this seriously.

Earl Attlee: I am very surprised to be shot down in flames on this amendment. I had hoped to have a little support for it. I will clearly have to think again and, subject to the usual caveat, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 25 agreed to.

The Earl of Dundee: moved Amendment No. 117:
	After Clause 25, insert the following new clause—
	"RESTRICTIONS ON NEW DRIVERS
	(1) The Road Traffic (New Drivers) Act 1995 (c. 13) is amended as follows.
	(2) In section 1 (probationary period for newly qualified drivers), after subsection (4) insert—
	"(5) During the course of the probationary period, the following conditions shall apply to a qualified driver—
	(a) he may not drive accompanied by any person under the age of 21;
	(b) the vehicle must be fitted with a distinguishing mark determined by regulations issued by the Secretary of State indicating that the driver is a probationary driver; and
	(c) he may not drive when the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.
	(6) The Secretary of State shall prescribe by regulations the size, nature and colour of the distinguishing sign in subsection (5)(b) above.
	(7) The prescribed limit of alcohol for the purposes of section 5(iii) above is—
	(a) in the case of breath, 9 microgrammes of alcohol in 100 millilitres;
	(b) in the case of blood, 20 milligrammes of alcohol in 100 millilitres; and
	(c) in the case of urine, 27 milligrammes of alcohol in 100 millilitres.
	(8) If a qualified driver drives in breach of any of the conditions set out in subsection (5), he is guilty of an offence.""

The Earl of Dundee: In moving this amendment, I shall speak also to Amendment No. 164.
	These amendments seek to place limitations on newly qualified and young drivers. Amendment No. 117 proposes a new clause relating to the Road Traffic (New Drivers) Act 1995. That Act already establishes a probationary length of time for new young drivers. If adopted, Amendment No.117 would add to the requirements for this period. It would do so in three ways. First, a newly-qualified young driver would be dissuaded from carrying other young people as passengers. Secondly, the vehicle would have to display a distinguishing mark to indicate the driver's probationary status. Thirdly, the prescribed limit of alcohol in breath, blood or urine would become lower than that for non-probationary drivers. As already outlined, those three proposed measures are contained in Amendment No. 117.
	Amendment No. 164, on the other hand, encourages the introduction of graduated classes of provisional licence. It does so by proposing a flexible power, although not a requirement, for the Secretary of State to order such graduated licences if and when he should see fit. The background to the amendments is of course the anomaly concerning young drivers. Seventeen to 21 year-olds account for 7 per cent of the driving population, but they comprise 13 per cent of the drivers involved in collisions. Therefore, there is a strong case for measures that can improve the safety record of young drivers.
	Nevertheless, these are probing amendments. Let us take the theme of dissuading newly-qualified young drivers from carrying young passengers. The amendment states:
	"he may not drive accompanied by any person under the age of 21".
	Clearly, that stipulation, if adopted, would be unreasonable. It would militate against a host of safe and responsible young drivers who would thus become prevented from assisting their own families by driving younger brothers, sisters and others where necessary and desirable. Equally, however, we can do well to take note of international examples that may assist us to adopt a balanced approach. Many jurisdictions have put in place graduated licensing programmes to maintain a level of supervision over newly-qualified drivers. In New Zealand, new drivers may only carry passengers when accompanied by a fully licensed adult driver, and in California the driver may not carry passengers under 20 years old. Many other jurisdictions restrict the young driver's ability to carry passengers during the learner rather than the probationary period. In British Columbia, Canada, the driver must display a N-plate, for novice, for the full 18-month novice period. In the Australian state of Victoria the probationary period lasts three years, during which the drive must display red P-plates.
	Many areas have lower blood alcohol limits for provisional drivers. In Western Australia, there is a lower BAC of 0.02, whereas for other drivers it is 0.05, and the provisional period lasts for two years. In New Zealand the BAC is a little higher at 0.03. In the state of Oregon drivers under 21 must have a blood alcohol content of zero. Graduated licensing schemes share several other features, including limitations on speed, holding a licence without committing an offence for a certain period, and engine size.
	Of course the problem is the same here as it is in other countries. Young drivers are more likely to be involved in collisions and are more likely to do so at excess speed, at night, under the influence of alcohol and while carrying passengers of a similar age to the driver. The current Road Safety Bill clearly provides an opportunity to reduce the problem, and the amendments in the group invite the Minister to do so. I beg to move.

Lord Brougham and Vaux: I have a lot of sympathy with my noble friend's amendment. I remember a few years ago when we were debating a previous Road Safety Bill the question of having P-plates as in Ireland came up, which carried some sympathy. Occasionally, you see a driver with a P-plate in England; probably they do it for their own protection. Are the Government considering doing what they do in Ireland and having the P-plate for a certain length of time?

Lord Bradshaw: I rise to speak to Amendment No. 120 which is in the name of the noble Baroness, Lady Gardner of Parkes, and myself. Our amendment is slightly different to that of the noble Earl, Lord Dundee, in that we say that for six months after the granting of a full licence the driver shall display a plate with the letter "R" on it. The choice of the letter is of course purely arbitrary, but this is a system which pertains in Northern Ireland and has done so for a long time. It gives with it the ability to restrict what the person carrying an R-plate can do. The immediate suggestions are that they should be restricted in some way in speed and possibly be restricted from going on motorways.
	Something which worries many people is that the average driving test and indeed a great deal of the tuition takes place in daylight, and certainly not on motorways. Yet we allow somebody one day to be restricted to driving a car with an L-plate on it in the company of an adult and not on motorways to allowing them virtually to do as they wish. The result is that quite a lot of people end up having fairly serious accidents fairly soon after qualifying. There are many other professions or skills that one acquires in life where one spends some time working under supervision or where one is restricted to doing some things but not others.
	Having the ability to drive and passing a driving test is a privilege. It is not something to be accomplished lightly or to be made light of. I hope that in his reply to these amendments the Minister will hold out something to us in that he might respond to our concerns about novice drivers.

Baroness Gardner of Parkes: Amendment No. 120 in my name and that of the noble Lord, Lord Bradshaw, is grouped with Amendment No. 117 tabled by the noble Earl, Lord Dundee. The noble Earl, Lord Dundee, has taken very specific points, which is not what we intend with our Amendment No. 120. We wanted to make the prime point that the vehicle driven by a new driver should be clearly identifiable and that it should be apparent to anyone that the person driving that car had not had long experience.
	I am not sure that six months is long enough, but the Government should take on board that some form of plate should be displayed for new drivers for a period, whatever that period, and there should be ways of testing what would be the ideal period. I have done some research in Australia where there are various restrictions for almost the first couple of years of driving. It is not for us tonight to decide exactly what time it should be, but whatever special measures are needed to help increase the safety of these young drivers—both for themselves and for the others who suffer the damaging effects of this very high percentage of accidents—they could be dealt with at a later stage by regulations. The regulations could then apply to whoever had to display this type of restricted plate. That applies as far as young people are concerned.
	As regards older people getting licences for the first time, I remember clearly a case that came to court where one elderly lady drove with her L-plates on and she was pulled up and taken to court because she was showing L-plates when she was a fully qualified driver. The reason was, she said, that people got very impatient with her and, when they saw the L-plates, were a little more patient. The case was thrown out, of course; it was nonsense that it was ever brought, and it was a long time ago.
	A lot of young people are not full of bravado but insecure new drivers. They would benefit from other drivers having a little more patience with them and taking into account their lack of experience. Those people would benefit by some type of plate being displayed. In other countries—I think that it is in effect in Australia—there is almost a nil alcohol level for new drivers, or so close as to be virtually nil. That has been accepted very well by young people. When they go for a night out, be it in the pub or to a party, they say, "So who's the driver?". They select the driver and that person does not have alcohol; they drive for the others. That seems to be the type of situation at which we should aim, with the driver going to a party being clear that they should not drive with any degree of alcohol that could be even moderately dangerous. They would be more dangerous than a very experienced driver with the same small level of alcohol.
	I support in principle many of the points in the amendment tabled by the noble Earl, Lord Dundee, and I certainly would like the Government to consider some form of identification of the newly qualified driver.

Lord Berkeley: I support the principle of the amendments, although I am not sure that any of them is totally right. The noble Baroness, Lady Gardner, said that people passing their test might be frightened; they might equally well be testosterone-fuelled, but either is equally dangerous. They need to be identified to other people and need some restriction on what they are able to do, for their own benefit. You can think of many examples where people get frightened. I understand why someone went around wearing L-plates because they were given a bit more space. Drivers do not always treat other drivers with respect.
	I am sure that something needs to be done. In most other forms of training to allow you to be in charge of something that can go extremely fast and kill people if you get it wrong, you do not usually just pass your test on whatever it is and get let out into the big wide world to do exactly what you like. Whether it is six months, two years, five years or whatever, there must be some graduation for people, for their own benefit and that of everyone else. I hope that my noble friend will be able to say that he will take the ideas away, look at them and come back on Report with something that brings in the good parts of all the amendments.

The Earl of Mar and Kellie: Amendment No. 120 reminds us of the special legislative provisions in Northern Ireland. I believe that compulsory seatbelts were trialled in Northern Ireland. That trial was clearly found to be satisfactory so compulsory seatbelts were extended to the whole United Kingdom. Then we have the R-plate, which is still legislated for in Northern Ireland but not elsewhere. Is it the view of the department and the Government that that experiment has worked or failed? If it is working, why is it not being extended? If it has failed, why is it still on the statute book?

Lord Davies of Oldham: I am grateful to Members of the Committee for the careful way in which they have presented their amendments, but I have the bad news that I shall resist them, despite the fact that I of course agree that we want to raise the standards of driving in this country. We are cognisant of the fact that newly qualified drivers have a higher risk of an accident in the early, post-test period than more experienced drivers. That is scarcely surprising because all skills need practice for their enhancement. Of course, that is a worry, but there is no evidence from Northern Ireland or anywhere else that displaying particular plates reduces the risk of accidents. I can see that it might give a certain element of satisfaction to those drivers who do not carry such plates. It might look as though that would improve road behaviour. But we have no evidence from Northern Ireland or anywhere else in the world where newly qualified drivers carry special plates that they reduce accidents.
	The noble Baroness, Lady Gardner of Parkes, moved the amendment about the "R" plate. We discussed the question of alcohol levels in an earlier amendment, and I sought to articulate then that we do not see why newly qualified drivers should be subject to any greater restriction than anyone else. There are strict limits on alcohol and we have condign punishments for those who break such limits. We fail to see why a newly qualified driver should come under greater restriction.
	I am not basing my argument on some cavalier response to intelligent amendments that have been carefully thought through. I would not be cavalier in any case. I know that the amendments have substantial careful thought behind them, as have our responses. We have consulted extensively on how to improve the position of newly qualified drivers. We all recognise the accident statistics and the proof that our roads are difficult to cope with. Drivers need a high level of skill to drive safely.
	We have responded by making the test increasingly rigorous, and by trying to improve the techniques of the trainers of those who give driving instruction. We would argue that people who have just passed the test cannot have a level of competence that matches that of the experienced driver because nothing can substitute for experience. I recognise the point made by the noble Lord, Lord Bradshaw, that it would be impossible for us to introduce fairly into the test a requirement to drive on motorways. Newly qualified drivers can drive on motorways. That may be looked on as an added danger, but motorways are the safest roads on which to drive. If all newly qualified drivers spent all their time on motorways there would not be the accident rate that we have.

Lord Bradshaw: I forbear to challenge the Minister, but the motorways are safest because there are no pedestrians or cyclists on them, so people do not get killed on them. It is not because people behave better on motorways.

Lord Davies of Oldham: I accept the truth of that position. If the argument is that learner drivers should have all sorts of restrictions imposed on them because they can kill people, and I can suggest an environment in which fewer people will be killed because the roads are safer, my argument holds, even if I accept the noble Lord's point that there are special features with regard to motorway driving. I do not see the point of adding a restriction when those roads present fewer challenges to the newly qualified driver than other roads. Although some desperate accidents occur on all kinds of roads, most of the time accidents that lead to death and which involve young people do not happen on motorways but on local roads.
	I hear what noble Lords are saying about restrictions improving driving. The noble Earl, Lord Dundee, has pursued this argument with great skill over a number of years. Our concern is to ensure that graduated learning happens before the test. That is the way in which we can guarantee the highest level of driving. If it is thought that I am very negative about other restrictions on drivers—and I am because I do not believe that there is proof that any of these restrictions would improve driving quality—I must say that I recognise that newly qualified drivers are more prone to accidents. If the statistics were not available, common sense would dictate that those who have just learnt to drive have less skill than those who have been driving for some time.
	The Road Traffic (New Drivers) Act 1995 exactly recognises that fact. It puts newly qualified drivers on probation for two years after passing their driving test. If during that period a driver reaches six or more penalty points his or her licence is automatically revoked and he or she has to start again. That is a restriction on the freedom of the newly qualified driver; that is a way of bringing home to them that, of course, they have passed one of the more demanding driving tests in the world, but they are also placing themselves on roads that often provide some of the most demanding conditions in the world and they are on probation. If they commit no offence, have no traffic difficulties of any kind, they pass the test and enjoy the same freedoms as the rest of us. However, if anything goes wrong in those first two years, it would be a rather condign punishment to say that their licences are taken away.
	I emphasise to noble Lords that I accept the argument that we have a special issue with regard to newly qualified drivers. I maintain that improving the standards of tuition, enhancing the status of the test, and having that one obvious requirement on the newly qualified driver, meets the situation as best as we can. I hope noble Lords will withdraw their amendments.

Baroness Gardner of Parkes: I shall not move Amendment No. 120 which is grouped with that of my noble friend Lord Dundee. The Minister has repeatedly made the point that there is no proof. One could get proof by introducing a pilot. If, at Report stage, I table—as I may do—an amendment giving the department the right to introduce a pilot to test this scheme, that would be the way to do it. The Chief Constable of Northern Ireland was extremely supportive when we debated this many years ago, when speakers from Northern Ireland spoke about how good it was. They considered it was clearly established and proven in Northern Ireland. The only way to decide whether it would be an improvement would be to have a pilot scheme. That may be the answer. I would like the Minister to consider that before we come to Report stage because if there were a provision in the Bill to create a pilot scheme and, dependent on the result, we decided to do this, that may be one way forward which would benefit us all. Meanwhile I shall not move my amendment, but my noble friend Lord Dundee has the right of reply on his amendment.

The Earl of Mar and Kellie: Perhaps I may say to the noble Baroness that I am mindful of the fact that the most northerly piece of motorway is in Perth, which means that someone who learns to drive in, say, Wick or Thurso, will be more than 200 miles away from a motorway. On the idea of having a pilot project, it would be a good idea if one of the project areas were in the far north, let alone the island groups, because their driving experience is going to be very different. Furthermore, the first time they will indulge in motorway driving may well be on rather long holiday journeys, which is not the best time necessarily to be learning to drive on a motorway.

Lord Brougham and Vaux: We all recognise that learner drivers cannot drive on motorways. As the noble Earl mentioned, some people do not have access to motorways. The Minister says that they are trying to improve standards of driving. I have been an advanced driver with ROSCO for the past 20 years. Would the Minister consider suggesting to drivers that after, say, 10 or 12 years they consider taking an advanced driving course? I am sure that it does one a lot of good.

The Earl of Dundee: I thank members of the Committee for their remarks as much as I thank the Minister, although I am sorry that he is unable to accept the amendment. As indicated, the anomaly concerning young drivers obtains here as much as it does everywhere else. In this country 17 to 21 year-olds represent 7 per cent of the driving population, although, as I recently quoted, they comprise 13 per cent of drivers involved in collisions. The current Bill certainly provides a good opportunity to address this anomaly and to improve the safety record of young drivers.
	There are a variety of individual and combination remedies. These include graduated classes of provisional licences, a dissuasion of newly qualified drivers from carrying passengers, the prescription of a lower alcohol limit than for others and a requirement to display a distinguishing mark on vehicles. I hope very much that some such measures will be introduced. I agree very much with my noble friend Lady Gardner of Parkes that pilot schemes could well be the best facilitators and the best way forward. Meanwhile, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	Clause 26 [Disqualification until test is passed]:
	On Question, Whether Clause 26 shall stand part of the Bill?

Lord Hanningfield: This clause amends Section 36 of the Road Traffic Offenders Act by substituting a new version of the definition of "appropriate driving test".
	The new definition would enable the Secretary of State to prescribe regulations when the appropriate driving test is an extended test. The clause also requires the Secretary of State to consult with such representatives as he thinks fit before making an order under this clause.
	I shall ask the Minister a number of questions about how he envisages this clause will work in practice. In particular, in what circumstances will the Secretary of State deem it necessary to prescribe the use of an extended test? It would be helpful if the Minister could give us further details of what exactly would be incorporated in the terms of an extended test.
	Furthermore, what is the difference between an extended test and a test of competence to drive, which is not an extended driving test as detailed in subsection 3(b) of the clause? How many individuals does the Minister envisage would be expected to participate in this extended test in any given year? Would the financial implications be both for the driver and for the test centre? The Minister told us how much it costs to take a driving test, so I do not know how much it would cost to take this extended test. In short, who will pick up the costs of this?
	Finally, which representative organisations would the Secretary of State consult before making an order under this section; and, indeed, for what purpose would such a consultation take place?

Lord Davies of Oldham: I understand the nature of the noble Lord's query. The new definition in Clause 26 will enable the Secretary of State to prescribe by regulations the circumstances in which, where a court has ordered that someone must pass a retest to recover driving entitlement, the retest must be either an extended driving test or an ordinary test of competence to drive. Furthermore, the clause improves driving licence security by applying the forgery provisions, to which I am sure the noble Lord has no objection.
	Section 36 of the Road Traffic Offenders Act 1988 gives courts a power, and in some cases places a duty on them, to require road traffic offenders to pass a driving test in order to regain their driving licence entitlement. Subsection (2) of Clause 26 amends Section 36(3), not only by providing broader powers on where a court may order that a person be disqualified until a test has been passed, but also by making it clear what is for an order and what is for regulations.
	Subsection (3) of Clause 26 substitutes a new subsection (5) of Section 36. Currently, where the offender is convicted of an offence involving obligatory disqualification, or is disqualified under the totting-up provisions, the appropriate driving test is an extended test. We regard that as overly rigid. There could be circumstances in which it was appropriate to use Section 36(3) to require obligatory retesting but where it would be sensible that the retest be just the ordinary test of competence to drive. We have already announced, in the context of our measures to address drink-driving, that we envisage providing that any person disqualified from driving for two years or more should always have to take a retest before recovering a full licence. But we envisage that an appropriate test in those circumstances could be the ordinary test, including both the computer-based test of knowledge and hazard perception and the practical driving test.
	All we seek is flexibility for the courts to decide which test to apply. The extended test is double duration and has a double fee. It can be taken only in a motorcar or a motorcycle, so it applies to drivers who seek to achieve competence in that area. The extended test is a significant extra imposition. We want to give courts the flexibility that they need on whether to impose the extended test or whether to require merely that the offender pass the driving test again.
	We have a database of approximately 3,000 consultees. All the consultations are placed on the agency's website. We are consulting fully. I hope that the noble Lord will feel that we are justified in framing the clause to include the element of flexibility.

Lord Hanningfield: I accept the Minister's answer. Perhaps the provision should have referred to retesting, which would have enabled us to understand it better.

Clause 26 agreed to.
	Clause 27 [Granting of full licence]:

Baroness Gardner of Parkes: moved Amendment No. 118:
	Page 35, line 45, at end insert—
	"( ) In section 89 of the Road Traffic Act 1988, after subsection (3) there is inserted—
	"(3A) Regulations under subsection (3) above shall include a requirement that before a full licence is granted the driver must have received training in, taken and passed a Hazard Perception Test, which shall measure the driver's proficiency at identifying and avoiding hazards.""

Baroness Gardner of Parkes: I need not delay the Committee with this amendment, as I tabled it a considerable time ago but subsequently had a conversation in the Library with a Peer whose son had just passed his driving test. He told me that his son had had to complete such training, as it is already included in the test. If that is the case, there is no point in this amendment. I beg to move.

Lord Davies of Oldham: The noble Baroness's knowledge is quite right, although she arrived at it anecdotally. There was an invitation to Members of this House, together with Members of another place, to present themselves for the hazard perception test. I was rash enough to do so. I would not be confessing to that if I had not had the good fortune to cope with it reasonably well. I assure the noble Baroness that it is very demanding and entirely appropriate. I am sure provision could be made again for noble Lords to avail themselves of this test. If such an opportunity arises, I invite her to participate, but she will have to stand by the results.

Baroness Gardner of Parkes: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham: moved Amendment No. 119:
	Page 36, line 10, at end insert—
	"(4) In section 195 of that Act (provisions as to regulations)—
	(a) in subsection (3), omit "is exercised" and after "189)" insert "is exercised (otherwise than for the purposes of section 97(1ZA) of this Act)", and
	(b) in subsection (4), after "Act" insert ", or for the purposes of section 97(1ZA) of this Act,"."

Lord Davies of Oldham: Subsection (2) of Clause 27 enables the Secretary of State by regulations to impose conditions on full driving licences in order to help improve enforcement of road traffic law and road safety. The Delegated Powers and Regulatory Reform Committee, in its first report of the current Session, commented that the power in Clause 27(2) seemed to be wide, and recommended, in paragraph 38 of its report, that,
	"an affirmative rather than a negative resolution-making procedure should apply".
	Although the negative resolution-making procedure is applicable for many powers in Part 3 of the Road Traffic Act 1988, we fully understand the view of the committee, and are eager to comply. We are happy to make this amendment, which ensures that an affirmative order procedure will apply. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 120 not moved.]
	Clause 27, as amended, agreed to.
	Clause 28 [Compulsory surrender of old-form licences]:

Viscount Ullswater: The Marshalled List has erred, so we move to Amendment No. 120A.

Lord Davies of Oldham: moved Amendment No. 120A:
	Page 37, line 15, leave out "Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (c. 53)" and insert "Schedule 1 to the Road Traffic Offenders Act 1988 (c. 53) (offences to which certain sections apply), after the entry relating to section 94A of the Road Traffic Act 1988 (c. 52) insert—
	
		
			  
			 "RTA section 98A(7) Driving licence holder failing to surrender licence and counterpart. Section 6 of this Act." 
		
	
	(3) In Part 1 of Schedule 2 to that Act"

Lord Davies of Oldham: The amendment will apply Section 6 of the Road Traffic Offenders Act 1988 to the offence created by this clause. Clause 28 of the Bill inserts into that Act a new Section 98A, which contains an order-making power that provides for the compulsory surrender of old-form licences. Anyone failing without reasonable excuse to comply with any requirement imposed by the order to surrender a licence and its counterpart will be guilty of an offence punishable on summary conviction with a fine not exceeding level 3 on the standard scale; namely, £1,000.
	Section 6 of the Road Traffic Offenders Act 1988 provides for an extended time limit within which summary proceedings for certain offences may be brought. Under that section, proceedings may be brought within the period of six months of the date the prosecutor becomes aware of sufficient evidence to warrant proceedings, but cannot be brought more than three years after the commission of the offence. I beg to move.

On Question, amendment agreed to.
	On Question, Whether Clause 28, as amended, shall stand part of the Bill?

Lord Hanningfield: I should like to say from the outset that we are deeply suspicious of Clauses 28 and 29. We will discuss the issue of a renewal charge for existing licences, but for now I would like to learn more about why the Government are so keen to remove these licences, what form they will take and the associated costs.
	We learn from the Explanatory Notes that not only are the old-style paper licences likely to be replaced but so too are the first generation of photocards, introduced only a few years ago. Under the current regime, having passed our test and paid the necessary fees, we are granted a licence that the vast majority of us get to keep until the age of 70. A photocard has now been deemed to be a better form of licence, but no change has been made to the system of charging. Now there is a possibility that new forms of licence may be introduced some time in the future and in a new form. Can the Minister comment on the reasoning behind the move and say whether this development is European-led? Does a similar scheme operate in other EU countries?
	We are particularly interested in the form that the new cards might take. The new licence could be a card with a photograph and a chip. With the way that ID cards are going, it might contain DNA. We would be fascinated to learn how the cards will interact with the proposed ID card scheme. Does the Minister envisage there being a single card containing one's personal identification details and driving details? Exactly what information will the new licence card have on it? What is the likely timescale for the introduction of the scheme?
	We are left in little doubt that each driver will be expected to pay the cost of one of the new-style licences. Why should individual drivers have to pay a fee because the state does not now like the form of licence that was issued previously? In essence, that is what the clause is about. If a member of the public has a valid permit—an old-style driving licence—and the Government, for whatever reason, want to take it away from him and issue a new one, the cost of doing so should be met out of general taxation, not by the member of the public concerned.
	In getting rid of the old-style licence, the Government also want to substitute it with an interim arrangement. The clause does not make that proposal clear, other than saying that we will get a piece of plastic and a piece of paper. The Government acknowledge that that is not satisfactory and that the document will have to be substituted again, presumably at a cost to the motorist once more. Furthermore, knowing how the Government bungle any IT programme—it is almost impossible to get any IT programme to work—I imagine that it will be years before the new version is available.
	I would be interested to learn from the Minister how much each of us will be expected to pay to acquire one of the new licences. Given the strength of feeling on the issue, the Government may have difficulties getting the clause through Committee, unless they can give an assurance that the cost of acquiring one of the licences will not be another tax on the over-taxed motorist.

Lord Bradshaw: I support most of what the noble Lord, Lord Hanningfield, said. This is possibly a sort of stalking horse for something that goes much further. I know that my colleagues, if they were present, would agree that they will have a lot to say about it, should such an extension—if that is the right word—be proposed.
	I am not as concerned as the noble Lord, Lord Hanningfield, about a tax on the motorist, but I am concerned about the Government proposing that we should have a form of licence—whatever form—for which we will pay what will possibly be a large sum. I have one of the old licences, which is perfectly good, as far as I can see. If I have to face getting an interim licence and then another replacement, how much money will I be asked to pay? What information is to be included on the new licence? The Minister's answer will be studied closely in Hansard by myself and by other people.

Lord Davies of Oldham: The surrender of the old-form driving licences, which we propose, is nothing to do with Europe. It is government-led; it is not a requirement from Europe, nor is it inspired from that source.
	The noble Lord, Lord Bradshaw, spoke of his familiarity with the old-style driving licence, one of which I have in my pocket. However, it is a document that goes back a very long time. It has very poor security provisions within it. Our problem is fraud. Those licences can be used, copied and abused with far greater ease than we are able to tolerate in contemporary society with all its problems with significant crime.
	The issue is driven by the question of security. It is also a reflection of the fact that, of course, technological improvements enable the production of photocard licences, which guarantee that it is more difficult for criminals to carry out identity fraud when a photograph is involved. That is the motivation behind this clause—nothing more and nothing less.
	Of course, I would imagine that the driving licence belonging to the noble Lord, Lord Bradshaw, looks remarkably similar to mine, although mine is probably more dated than his. But, over the years, there have been changes. There are quite a variety of paper driving licences that remain in circulation, which lend themselves wide open to misappropriation. The different forms, levels and types of security feature make it very difficult for any inquiring authority to cope with what is very far from being a standard form of driving licence, to say nothing of the fact that the older ones do not contain any photographic evidence.
	The plastic photocard licences provide a new type of production technology that allow a range of rather more sophisticated security features to be incorporated. The photocard licence contains five times as many security features as the old paper licences, including a range of covert and overt features that protect the card and its holder from a range of threats. I have to say that those threats are real: there is a wide range of abuse. Foreign licensing authorities return on average some 60 counterfeit paper licences to the DVLA every year. There are cases where drivers try to exchange counterfeit paper licences for valid European Community licences in other member states. Valid licences could, of course, be subsequently used by drivers to drive in the UK.
	The police bring to the DVLA's attention some 300 counterfeit paper licences a year. It provides the police with witness statements confirming that the licence is counterfeit, which is used to take forward prosecuting action. The police have also reported cases where disqualified and unqualified drivers have used another person's paper licence to avoid detection. When stopped and challenged by the police, those people will provide the personal details of the proper licence holders and produce the paper licences to substantiate their identity and driving licence entitlement. The absence of any photographs make it very difficult for the police to detect or to prove the impersonation.
	The Driving Standards Agency reported that paper licences were used to support impersonations at driving tests. Although the introduction of the photocard licence has helped to stifle that particular abuse, the continued validity of paper licences could still be used for that purpose. We have a real problem that these licences are wide open to abuse. Our motivation is to cope with that level of fraud and difficulty, against a background where we obviously have enhanced technological capacity well beyond anything that obtained some years ago with the concept of a document of this kind.
	The noble Lord will expect me to say this, and I shall not disappoint him in his expectation. I am not in a position to talk about the level of fees involved. We have not reached anything like that stage in our deliberations yet. I recognise fully his anxiety on that front. We all appreciate the fact that a fee will be necessary to meet what will be significant costs and there will be great public interest and interest in this House and in another place in the level of the fee, but I am not in a position to discuss that in any detail, save to confirm that there will be one involved.
	Existing photocards will be withdrawn only if they are seriously compromised in terms of security, so we will retain what we have that is effective. The noble Lords, Lord Bradshaw and Lord Hanningfield, are right in indicating that a substantial number of driving licences will have to be enhanced. They are significant documents: significant enough for fraud to be perpetrated using them on considerable occasions and often in serious circumstances. We all know that a great deal of serious crime takes place with the use of motor vehicles that have to be obtained. They can be begged, borrowed, stolen or hired. If they are hired, you need fraudulent papers if you drive them. If the police stop you, you have to be able to defend yourself. Therefore, crime based on the use of the motorcar often involves fraudulent use of papers and we have an obligation to use the technology that we have to improve that position. That is the basis of the clause. I hope that the Committee will support it.

Viscount Simon: I have a serious, somewhat searching question for my noble friend. It is not intended to be frivolous. If I have a new photocard and the new format is supposed to provide proof of identity, overcome fraud and all kinds of other things, does that mean that those people who hold such licences will no longer need the proposed identity cards?

Lord Davies of Oldham: My noble friend is being as helpful as ever. He has drawn attention to the fact that the noble Lord, Lord Hanningfield, had hinted at that issue too and I had not answered the point. I would be straying somewhat far afield from my brief if I discussed the issue of identity cards, which the Committee will recognise are the subject of intensive consultation at the present time. Suffice it to say that if my noble friend has the advantage over the noble Lord, Lord Bradshaw, and indeed myself by having a relatively modern driving licence, he is in a far healthier position than we will be when such regulations come into play.

Lord Hanningfield: Does the Minister realise that there will be a great deal of speculation about the new driving licence and ID card? The issues cannot be separated. We are in the process of discussing the legislation. We are only at Committee stage; we are going to go through Report stage and Third Reading. It would be appropriate for the Government to clear up whether there is a connection between the new driving licence and the ID card, which will become important. Will the Minister comment further?

Lord Davies of Oldham: The noble Lord has merely reinforced his earlier point to which I was not able to respond particularly positively. I hear what he says; I recognise the importance and it is unlikely that this is the only time I shall be challenged on this point at the Dispatch Box. For the moment I will have to say to him that I am concerned that we need to enhance the quality of the paper driving licence. Indeed, in terms of the numbers, they are decreasing. My noble friend Lord Simon is not in a tiny minority in boasting of his new driving licence. A very large number of our fellow citizens already benefit from it; something in the order of 20 million. The licences are coming on stream at the rate of 2 million a year. We are making rapid progress, but it does not alter the fact that our fellow citizens, including the noble Lord, Lord Bradshaw and myself, will have to comply. Issues will arise in that regard.
	The noble Lord will have to accept that I cannot go further this evening.

Lord Hanningfield: Perhaps I may go a little further because as yet the Minister has not come back on the point I made. I too am the holder of a paper licence which will last until I am 70 years old, which is a few years off. Why should I have to pay for a new licence which, if it insists that I need a new licence, should be provided by the state? The Minister did not respond to that point. Should not the paper licences be replaced by the state? While it is different if you apply for a new licence or pay a yearly fee, something that is being taken away from people ought to be replaced by the state.

Lord Davies of Oldham: I assume that that was the noble Lord's summing up.

Clause 28, as amended, agreed to.

Lord Evans of Temple Guiting: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at four minutes before ten o'clock.
	Monday, 17 October 2005.